HomeMy Public PortalAboutPolicy Resolution-10R2016-5 (Policy Resolution No. 10) Page 1 of 2 January 19, 2016
RESOLUTION R2016-5
POLICY RESOLUTION NO. 10
POLICY RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF NAPA, STATE OF CALIFORNIA, REGARDING
NORMS OF OPERATION AND RULES OF ORDER AND
PROCEDURE FOR CITY ESTABLISHED BOARDS,
COMMISSIONS AND COMMITTEES, UPDATING CITY
POLICY RESOLUTION NO. 10
WHEREAS, the City Council recognizes the value of public participation in the
affairs of City government, and the City Council seeks ways to encourage effective
participation by City residents and members of the general public; and
WHEREAS, the City has an interest in establishing and operating City boards,
commissions, and committees in a manner that most effectively utilizes the valuable
time of participating members; and
WHEREAS, the City Council has broad authority to appoint members of the
public to serve on City established boards, commissions, or committees for the purpose
of providing recommendations to the City Council, and the City Council has limited
authority to delegate decision making authority to City boards, commissions, or
committees; and
WHEREAS, in establishing and operating City boards, commissions, and
committees, the City is required to comply with particular provisions of State law such
as the Brown Act (California Government Code Section 54950 et seq.), the Political
Reform Act (California Government Code Sections 81000, et seq.), and the Maddy Act
(California Government Code Sections 54970, et seq.); and
WHEREAS, in order to comply with legal requirements and achieve the City
goals summarized above, the City Council has previously adopted Policy Resolution
No. 10, as updated on November 6, 2007, May 6, 2008, June 21, 2011 (R2011-82), and
most recently on June 4, 2013 (R2013-43, hereinafter referred to as the “2013 Policy
Resolution”) to establish procedures by which City boards, commissions, and
committees are operated; and
WHEREAS, on October 13, 2015, the City Council provided general direction to
City staff to update the procedures for evaluating applications, interviewing applicants,
and appointing members to City boards, commissions, and committees (which are
represented in subsections 4.3 through 4.8 of Exhibit “B”); and
WHEREAS, updates to State law related to the Brown Act and the Political
Reform Act warrant corresponding updates to the summaries of those State laws, as set
forth in Exhibits “A” and “B” to the 2013 Policy Resolution.
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R2016-5 (Policy Resolution No. 10) Page 2 of 2 January 19, 2016
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Napa,
as follows:
1. The City Council hereby finds that the facts set forth in the recitals to this
Resolution are true and correct, and establish the factual basis for the City
Council’s adoption of this Resolution.
2. The City Council hereby repeals the 2013 Policy Resolution (R2013-43).
3. The City Council hereby adopts Policy Resolution No. 10, as set forth in
Exhibit “A,” attached hereto and incorporated herein by reference.
4. The City Council hereby authorizes the City Attorney to attach to this
Resolution a summary of the requirements of the Brown Act, as relevant
to the responsibilities of members of Commissions, and to update that
attached summary as necessary to describe the requirements of State law
(see Exhibit “B”).
5. The City Council hereby authorizes the City Attorney to attach to this
Resolution a summary of the requirements of the Political Reform Act (and
related conflict of interest laws), as relevant to the responsibilities of
members of Commissions, and to update that summary as necessary to
describe the requirements of State law (see Exhibit “C”).
6. This Resolution shall take effect immediately upon its adoption.
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the City
Council of the City of Napa at a public meeting of said City Council held on the 19th day
of January, 2016, by the following vote:
AYES: Inman, Mott, Luros, Sedgley, Techel
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST: ________________________
Dorothy Roberts
City Clerk
Approved as to form:
________________________________
Michael W. Barrett
City Attorney
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Policy Resolution No. 10
1. Adoption.
The City Council hereby approves the updated Policy Resolution No. 10
(hereinafter referred to as “Policy Resolution No. 10” or “this resolution”), as set
forth herein.
2. “Commissions” Subject to this Resolution.
2.1. This resolution is intended to apply to all “Commissions” as defined herein. For
the purpose of this resolution, the term “Commission” shall mean any body of
people, created by City Charter or formal action of the City Council, to act in an
advisory or decision making capacity regarding matters within the subject matter
jurisdiction of the City (subject to the exceptions set forth in Sections 2.3 and
2.4, below). The term “Commission,” as defined herein, may be used to refer to
bodies or groups of people that also use some other name, such as a “board,” or
“committee.”
2.2. The City Clerk shall keep an up to date list of all Commissions subject to this
resolution. Examples of “Commissions” subject to this resolution include: Bicycle
and Trails Advisory Commission, Building and Fire Code Board of Appeals,
Community Development Block Grant Committee, Cultural Heritage
Commission, Disability Access Board of Appeals, Parks and Recreation
Advisory Commission, Planning Commission, Senior Advisory Commission, and
Tree Advisory Commission.
2.3. The following bodies of people are specifically excluded from the definition of
“Commission” for the purpose of this resolution:
2.3.1. Any separate legal entity created by City Charter or formal action of the
City Council, including: the Successor Agency to the Napa Community
Redevelopment Agency, the Housing Authority of the City of Napa, the
Parking Authority of the City of Napa, the City of Napa Public Facilities
Financing Authority, and the City-Housing Authority Building Authority.
2.3.2. The Civil Service Commission.
2.3.3. Any body of people that is not defined as a “legislative body” pursuant to
the Brown Act (California Government Code Section 54951). As an
example, an “advisory committee” to the City Council is not a “legislative
body” under the Brown Act as long as: (a) it is composed solely of less than
a quorum of the members of the City Council, and (b) it does not have a
continuing subject matter jurisdiction or a meeting schedule set by formal
action of the City Council.
2.3.4. Any body of people that is created by the action of another governmental
agency or private entity (hereinafter “Non-City Entity”), even if the City
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Council appoints one or more members; for example: Napa County Library
Commission, Napa County Mosquito Abatement District, and Napa
Sanitation District.
2.4. It is beyond the scope of this resolution to regulate the conduct of members of a
Non-City Entity. However, to the extent that the City Council is authorized to
appoint members to a Non-City Entity, the City Council shall follow the
processes for selection of members to Commissions set forth in this resolution
(particularly Section 4) to evaluate and appoint members to Non-City Entities.
The City Clerk shall keep an up to date list of all Non-City Entities subject to
these selection processes.
3. Purpose and Goals.
3.1. This resolution is intended to provide guidelines for each Commission regarding
norms of operation and rules of order and procedure for the conduct of
Commission meetings, and guidelines for the conduct of each member of a
Commission.
3.2. Each Commission is encouraged to adopt its own rules of procedure or by-laws
to govern the conduct of the Commission’s activities. However, if there is any
conflict between this resolution and any rules of procedure established by a
Commission, the provisions of this resolution shall take precedence.
3.3. Each Commission shall conduct its meetings in an open and public manner in
accordance with the “Brown Act” (California Government Code Section 54950 et
seq.), and in a manner that will provide reasonable and equitable opportunities
for representatives of all sides of an issue to civilly present their ideas and
concerns to the Commission. A summary of the requirements of the Brown Act
is set forth on Exhibit “B,” attached hereto and incorporated herein by reference.
3.4. Each Commission member shall avoid conflicts of interest and comply with the
requirements of the Political Reform Act, as summarized in this resolution
(particularly Section 5.6; and Exhibit “C,” attached hereto and incorporated
herein by reference).
3.5. Each Commission shall take action on only those items that are within the
subject matter jurisdiction of the Commission, as authorized by the City Council.
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4. Qualifications of Commission Members, and Appointments to Commissions.
4.1. The requirements set forth in this Section 4 shall apply to the City Council’s
appointment of members to Commissions; provided, however, the City Council
may, by ordinance or resolution modify any of the requirements set forth in this
Section 4 for one or more of the Commissions.
4.2. Annual Notice: The City Clerk shall annually publish the Local Appointments List
for all Commissions pursuant to the requirements of the Maddy Act (California
Government Code Sections 54970, et seq.). The Maddy Act generally requires
the Local Appointments List to include a list of each Commission, all appointive
terms that will expire in the following calendar year, the name of the incumbent,
the date of appointment, the date the term expires, and the necessary
qualifications for the position.
4.3. Notice of Vacancy: When there is a vacancy for a position on a Commission,
whether the vacancy is due to the expiration of a term or otherwise, the City
Clerk shall publish a notice of the vacancy and solicit applications from
applicants in a manner that will encourage participation from qualified applicants
representing a cross-section of the community, in accordance with the following:
4.3.1. If the vacancy is based on the expiration of a term, the City Clerk shall
provide written notice to the incumbent to provide an opportunity for the
incumbent to apply for another term.
4.3.2. In addition, the City Clerk shall post the vacancy in accordance with the
requirements of the Maddy Act, which generally requires a notice of any
unscheduled vacancies to be posted at the City Clerk’s Office and the
library, not earlier than 20 days before the vacancy, not later than 20 days
after the vacancy, and not later than 10 working days prior to appointment
by the City Council.
4.3.3. Written notices of vacancy shall identify the requirements for submitting
written applications (including application format, which may include an
option for submittal of online applications, and deadline for submission), and
shall outline the procedures for City Council’s consideration of applications
(including the interview and appointment process).
4.4. Written Applications: Any person desiring to be considered for appointment to
any Commission shall complete a written application, on a form provided by the
City Clerk (which may include an option for submittal of online applications).
Each applicant shall provide sufficient information to demonstrate that the
applicant meets or exceeds the minimum qualifications for membership on the
Commission, and to demonstrate the applicant’s interest in the position. The
written applications shall be considered by the City to be public records (subject
to public disclosure under the Public Records Act, California Government Code
Section 6250, et seq.), and copies of the written applications shall be distributed
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to members of City Council and made available to the public pursuant to City
policy for the conduct of Council meetings (Policy Resolution No. 19). Provided,
however, individual exceptions to public disclosure may be applied to portions of
the applications (such as the redaction of personal identifying information; e.g.,
addresses and phone numbers)
4.5. Evaluation Criteria: When evaluating the qualifications of any applicant for
appointment to a vacant position on a Commission, the City shall consider the
following criteria:
4.5.1. The City Council will consider whether the applicant meets or exceeds the
minimum qualifications for membership on the Commission, including any
special requirements for the particular vacant seat on the Commission, and
the extent to which the applicant has demonstrated an interest in the
position.
4.5.2. No City employee may be appointed as a member of a Commission.
4.5.3. Unless otherwise specified by Council ordinance or resolution, a member
of a Commission shall be a full-time resident and registered voter of the City
of Napa at the time the City Clerk provides written notice of the vacancy
(pursuant to Section 4.3 of this resolution).
4.5.4. The City Council will consider the effect of any potential incompatible
offices currently held by the applicant. (See Exhibit “C.”)
4.5.5. The City Council will not appoint a person to serve simultaneously on
more than one Commission unless: (a) at least one Commission is of a
limited term, and (b) there is no resulting incompatibility of offices.
4.5.6. The City Council will consider potential conflicts of interest which could
require the applicant to recuse himself or herself from participation in
matters with the subject matter jurisdiction of the Commission. (See Exhibit
“C.”)
4.5.7. The City Council will consider the applicant’s availability to serve on the
Commission for the identified term of the appointment, as described in
Section 4.6 of this Resolution.
4.6. Commissioner’s Term of Office:
4.6.1. The full term of each member of a Commission shall be two years (unless
otherwise specified by ordinance or resolution of the City Council for a
particular Commission); provided, however, if the full term of any member
expires, that member shall continue to hold the office as a Commission
member until his or her successor has been duly appointed by City Council.
In an effort to encourage participation on Commissions by a broad range of
members of the community, the City Council may limit the term of an
incumbent to two full terms; provided, however, the City Council may
reappoint a Commission member beyond the limit of “two full terms” if the
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Council determines that circumstances warrant the reappointment of a
particular incumbent.
4.6.2. If there is a vacancy on a Commission prior to the expiration of an existing
term of an appointed Commissioner, the vacancy shall be filled for the
unexpired portion of the existing term.
4.6.3. Notwithstanding the limitation of Section 4.6.2, above, if there is a vacancy
on a Commission prior to the expiration of an existing term of an appointed
Commissioner, and the remaining term is less than one year, the City
Council may, at the time of appointment, either: (a) appoint a Commission
member for the unexpired remaining term; or (b) appoint a Commission
member for the unexpired remaining term plus an additional full term.
4.6.4. Each member of a Commission serves at the pleasure of the City Council,
and any member of a Commission may be removed by the Council at any
time (based on a majority vote of the quorum of the City Council in
attendance at the Council meeting) without any showing of cause for
removal.
4.7. Three Alternative Appointment Processes: The City Council shall evaluate
applicants and make an appointment for each vacant position on a Commission,
using one of the three following processes:
4.7.1. The City Council may waive the interviews and make appointments at a
noticed public meeting, open to the public under the Brown Act, based on
applications received, and based on the selection criteria set forth in Section
4.5 of this Resolution.
4.7.2. The City Council may appoint two members of Council to serve as a
Nomination Committee in order to evaluate and interview applicants and
make recommendations to City Council for final action to appoint a member
to a Commission. Any meetings of the Nomination Committee to evaluate or
interview applicants and formulate recommendations to be presented to the
Council shall be conducted as a part of a noticed public meeting, open to the
public under the Brown Act; with the City Clerk acting as Secretary to the
Nomination Committee, and the Staff Managers (for each Commission with
a vacancy being considered) in attendance. The Nomination Committee
shall consider the selection criteria set forth in Section 4.5 of this Resolution.
The City Clerk shall present recommendations from the Nomination
Committee to the City Council, and the City Council may either approve the
recommendations as submitted, or take further action to evaluate the
applicants and make appointments in accordance with Sections 4.5 through
4.8 of this Resolution.
4.7.3. The City Council may invite applicants to a public interview by the City
Council, to be conducted in accordance with Section 4.8 of this Resolution.
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4.8. Council Interview Selection Processes: Any interview conducted by City Council,
of applicants for appointment to a Commission, shall be conducted as a part of a
noticed public meeting, open to the public under the Brown Act. Following public
interviews of applicants, the Council shall first determine the number of open
seats on the commission to be filled by the applicants interviewed. The Council
shall then vote to determine which applicants will be appointed to fill each open
seat of each commission. For each open seat of each commission, each
member of Council will cast one vote (on a written ballot identifying the name of
the member of Council and the votes cast). Each member of Council will cast no
more than one vote per applicant. For each open seat, the applicant who
receives the greatest number of votes (at least a majority of the quorum of voting
members of Council) shall be appointed to the open seat. If, following this vote,
all open seats are not filled, the Council may either repeat this process to fill the
remaining open seats (eliminating from consideration the applicants who
received the least number of votes), or direct staff to take additional actions to fill
the remaining open seats in accordance with Sections 4.3 through 4.8 of this
Resolution.
4.8.1. The City intends this selection procedure to be public and without
concealment. The written ballots are public records, the vote of each
member of Council will be read into the record by the City Clerk during the
meeting and will be made a part of the written record of the meeting, and
copies of the written ballots will be made available to the public pursuant to
the Public Records Act.
5. Responsibilities of Commission Members, and Communications Between
Commission Members, City Council, City Staff, and Members of the Public.
5.1. When publicly communicating regarding matters within the subject matter
jurisdiction of the Commission (including participating in public Commission
meetings, communicating with other City officers or officials, and communicating
with members of the public), each Commission member shall conduct himself or
herself with professional respect and civility, in accordance with all requirements
established by the City Council and the Commission, including any City Council
ordinances or resolutions (including this Resolution), and any Commission
bylaws, resolutions, or rules of conduct.
5.1.1. Each Commission member shall make an effort to educate himself or
herself regarding the role and scope of the Commission’s authority. This
shall include evaluating and seriously considering, prior to each Commission
meeting, specific issues that will be presented during the Commission
meeting. Each Commission member shall be prepared to fully discuss
during each meeting the issues on the meeting agenda.
5.1.2. When researching and evaluating issues prior to each meeting, and when
considering information presented during the meeting, each Commission
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member shall keep an open mind to considering alternative viewpoints, and
each Commission member shall carefully weigh the pros and cons of each
alternative. When considering alternatives, each Commission member shall
consider the benefits and burdens on the community as a whole, and shall
not give undue weight to the interests of special interest groups.
5.2. Each Commission member shall comply with the requirements of the “Brown
Act” (see summary on Exhibit “B”). In particular, Commission members shall not
communicate with one another (outside of open and public Commission
meetings) in a way that will cause a majority of the Commission members to
“hear, discuss, or deliberate upon any item that is within the subject matter
jurisdiction” of the Commission or the City. For example, on a five member
Commission, the Brown Act precludes a “serial meeting” by which
Commissioner “A” discusses a matter with Commissioner “B,” and then
Commissioner “B” separately discusses the same matter with Commissioner
“C.”
5.3. Commission members and Council members shall conduct themselves
consistent with their respective roles and responsibilities.
5.3.1. The City Council establishes legislative policy direction within which each
Commission operates, and the Council establishes the scope of
responsibility for each Commission. To the extent a Commission votes to
find that modifications are warranted to legislative policies or a
Commission’s scope of responsibility, the Commission may request the Staff
Manager to forward to the City Council a recommendation for modification
for Council’s consideration. Each Commission is encouraged to provide any
such recommendations to the Council on an annual basis as a part of the
City Council’s consideration of the budget.
5.3.2. The City Council has delegated authority to the City Manager to establish
the scope of City staff support available to each Commission. To the extent
a Commission votes to find that additional City staff resources are warranted
to address a particular issue, Commission may request the Staff Manager to
forward to the City Manager a request for additional resources for the City
Manager’s consideration. Each Commission is also encouraged to provide
any such recommendations to the Council on an annual basis as a part of
the City Council’s consideration of the budget.
5.3.3. A Commission may make recommendations to City Council to support or
oppose a ballot measure or State or Federal legislation. However, no
Commission is authorized to take an action to independently support or
oppose a ballot measure or State or Federal legislation.
5.3.4. In an effort to encourage independent advice to the City Council from
Commissions, the City Council has adopted procedures (set forth in Policy
Resolution No. 19) that require members of Council to refrain from using
their position to unduly influence the deliberations or actions of Commission
proceedings.
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5.3.5. The City Council may request a Commission to attend a joint meeting of
the City Council and the Commission to review activities of the past year, as
well as work programs, objectives, and goals for the coming years.
5.3.6. The City Council or the City Manager may request the Chair, or a
representative selected by the Commission, to publicly present positions of
the Commission to the City Council or community groups. In these
circumstances, the recommendations and actions of the full Commission
shall be clearly communicated, including an identification of majority and
minority positions.
5.3.7. In the absence of a request from the City Council or the City Manager, a
Commission member may appear before the City Council or a community
group, in the same manner as any other member of the general public,
solely to represent the member’s personal interests. However, under such
circumstances, the member of Commission shall clearly indicate that the
member’s comments are based on the member’s personal interests, and
that the member is not authorized to speak on behalf of the Commission.
5.4. Members of Commission and City staff shall conduct themselves consistent with
their respective roles and responsibilities. City staff shall acknowledge and
respect each Commission’s role (in an advisory or decision making role) as an
appointed representative of the City Council. Commission members shall
acknowledge and respect the City staff’s role in administering City Council
policies, as directed by the City Manager.
5.4.1. The City Manager shall assign a Staff Manager to each Commission to
coordinate the provision of staff support to the Commission.
5.4.2. If any Commission member has any question regarding the Commission
member’s responsibilities or authority, the Commission member shall
contact the Commission’s Staff Manager. To the extent the Staff Manager
has any legal questions regarding the responsibilities or authority of the
Commission, the Staff Manager shall work with the City Attorney to obtain
legal assistance.
5.4.3. The Staff Manager shall appoint a Secretary to the Commission to assist
the Commission in complying with all procedural requirements of this
Resolution, particularly related to the preparation of meeting agendas,
notices, reports, and minutes.
5.4.4. When a Commission makes a recommendation to Council, or a
Commission’s action is appealed to Council, City staff (through the
Commission’s Staff Manager) shall clearly communicate to City Council the
recommendations and actions of the full Commission, including an
identification of majority and minority positions. In some circumstances, the
recommendation of City staff may differ from the Commission’s
recommendations or actions, in which case each position will be clearly
presented to Council by City staff.
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5.4.5. The City Manager is responsible for determining the administrative and
operational structures of City staff to deliver the staff support, through the
Staff Manager, to each Commission. Commission members will not interfere
with the City Manager’s executive or administrative authority, as
implemented by the Staff Manager. If a Commission member has any
questions or concerns regarding the level or quality of staff support provided
to the Commission, the Commission member may communicate the concern
privately to the Commission’s Staff Manager or the City Manager to ensure
that the concern is resolved (in order to avoid possible inadvertent public
disclosure of confidential personnel matters).
5.4.6. The City Manager is authorized to establish and maintain written
administrative regulations to implement the policies set forth in this
resolution. The City Manager may delegate the duties and authority set forth
in this resolution to Staff Managers, Commission Secretaries, the City Clerk,
or other qualified City employees, to be documented as a part of the
administrative regulations.
5.4.6.1. The City Manager may include in the administrative regulations
clarifications of protocols for communications between City staff and
members of Commission, in order to ensure that each member of
Commission has equal access to information from City staff. These
protocols may also include the manner by which written
communications addressed to members of Commission will be handled
by City staff.
5.4.6.2. A copy of the administrative regulations shall be maintained in the
office of the City Clerk. The administrative regulations shall be
recommended for approval by the Commission’s Staff Manager, and
subject to approval as to form by the City Attorney.
5.5. Each year, the Commission shall vote to elect a Chair and Vice Chair. The
Commission is encouraged to annually rotate the responsibilities of Chair and
Vice-Chair so that each Commission member has an opportunity to serve in
each position. The responsibilities and authority of the Chair are set forth in
Section 9.1 of this Resolution. In general, the Chair is responsible for exercising
judgment in managing the conduct of the meeting so that the overall goals of this
Resolution are met. The Chair must be able to enforce the rules of conduct to
facilitate civil participation by potentially opposing points of view, to keep the
topics of discussion focused on issues relevant to the item being considered by
the Commission, to prohibit conduct that is out of order, and to ensure the
Commission’s actions are taken in a manner that is clear and understandable to
the public. The Chair may also be requested by the City Council to publicly
present actions taken by the Commission.
5.6. Each Commission member shall comply with the requirements related to
avoiding conflicts of interest, and complying with the Political Reform Act (see
summary on Exhibit “C”).
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5.6.1. In particular, Commission members shall recuse themselves from
participating in any item action that will have a reasonably foreseeable
material financial effect upon a Commission member’s economic interest,
and annually provide to the City Clerk the disclosures required by FPPC’s
“Form 700.”
5.6.2. Under the common law doctrine of incompatibility of offices, a Commission
member may automatically (even inadvertently) forfeit a position on a
Commission by accepting an appointment to an incompatible position.
5.7. Each Commission member is required to attend each Commission meeting,
unless the member identifies a reasonable good faith reason for the absence,
and the absence is excused by a vote of the Commission. If a Commission
member anticipates being absent from or late to any Commission meeting, the
Commission member shall provide prior notice to the Secretary or the Staff
Manager.
5.7.1. If a Commission member is absent without excuse for three consecutive
Commission meetings, or if a Commission member is absent from service
more than 60 days (with or without excuse), the Staff Manager shall provide
written notice to the Commission member specifying the date on which the
absences will be reported to the City Council at a public meeting. During the
meeting, the City Council may either: (a) remove the Commission member
and declare the position vacant, or (b) approve a leave of absence for the
Commission member for a specified length of time.
5.8. Commission members may retain membership on a Commission while seeking
elective office. However, Commission members may not use Commission
meetings for the purpose of campaigning for elective office.
5.9. Unless otherwise specified by City Council ordinance or resolution, each
Commission member shall serve without compensation by the City.
5.10. Each Commission member shall provide the Secretary and the City Clerk with
up to date contact information for the purpose of communications from City staff
to Commission members, pursuant to the requirements of this Policy. Notices
delivered by City staff to Commission members, based on the contact
information provided by each Commission member, shall serve as sufficient
notice (as described in Sections 4, 7.1, and 7.6 of this Policy).
6. Regular Meetings of Commissions.
6.1. Each Commission shall identify (and amend as necessary), by resolution or
bylaws, the date, time, and place of each regular meeting; provided, however,
(a) the City Council may establish the regular meeting schedule of any
Commission, or (b) the City Council may designate a commission as a “standing
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committee” for which no regular meetings are scheduled. (See California
Government Code Sections 54954 and 54952(b); and, e.g., Napa Municipal
Code Section 15.04.100 regarding the status of the Building and Fire Code
Board of Appeals as a standing committee.)
6.2. The agenda for each regular meeting shall identify the date, time, and place of
the meeting, with a brief general description of each item of business to be
transacted or discussed at the meeting, and the order of business. The form of
the agenda shall be subject to review and approval as to form by the City
Attorney. The agenda shall be posted at least 72 hours before the meeting at a
location that is freely accessible to members of the public (see California
Government Code Section 54954.2), and a copy of each agenda shall be filed
with the City Clerk.
6.3. The agenda for each regular meeting shall identify the scheduled order of
business. The agenda shall be established by the Staff Manager according to
the guidelines set forth in Section 8 of this Resolution; however, the Chair may
modify the order of business if it is determined that the modification will facilitate
the efficient and fair conduct of the meeting. The order of business as
established by the Staff Manager or the Chair may be overridden by a vote of
the Commission per Section 8.2 of this Resolution.
6.4. Each regular meeting shall be conducted at a location within the City limits,
unless the Staff Manager determines, after consulting with the City Attorney, that
a meeting is authorized outside the City limits pursuant to California Government
Code Section 54954(b). Each regular meeting shall be open to the public
pursuant to California Government Code Section 54953(a).
7. Types of Commission Meetings. In addition to holding regular meetings, as
described above, a Commission may conduct any of the following types of meetings
in accordance with the Brown Act:
7.1. Special Meetings.
7.1.1. A special meeting may be called at any time by the Chair, or by a majority
of the members of Commission. The agenda notice of the special meeting
shall be prepared by the Secretary and delivered in accordance with
California Government Code Section 54956 and Section 5.10 of this Policy.
7.1.2. The agenda notice for each special meeting shall comply with the
requirements of Sections 6.2 and 6.3 of this Resolution; provided, however,
the time for posting the agenda shall be at least 24 hours before the time of
the meeting.
7.1.3. Each special meeting shall be conducted at a location in compliance with
Section 6.4 of this Resolution.
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7.2. Closed Sessions. A Commission may be authorized to meet in a closed session
meeting, not open to the public, as a part of any noticed regular meeting or
special meeting; provided, however, prior to scheduling or conducting a closed
session, the Commission’s Staff Manager shall obtain approval from the City
Attorney regarding the authorized scope of the closed session discussion. The
subject matter of any closed session meeting shall be limited to the topics
authorized by the Brown Act, and notices of closed session topics shall be made
as required by the Brown Act, as generally summarized by California
Government Code Section 54954.5.
7.2.1. The Commission shall publicly report any action taken in closed session
pursuant to California Government Code Section 54957.1.
7.2.2. The City Council designates the Secretary to attend closed session
meetings of the Commission and keep confidential closed session minutes,
pursuant to California Government Code Section 54957.2.
7.3. Adjourned Meetings. Any regular meeting or special meeting may be adjourned
to a different date, time, and/or place as specified in an order of adjournment
posted pursuant to California Government Code Section 54955. (See also
Subsection 10.4.4.1.)
7.4. Continued Hearings. Any hearing (that is noticed to be held by the Commission
at any regular meeting or special meeting) may be continued to a different date,
time, and/or place as specified in an order or notice of continuance posted
pursuant to California Government Code Section 54955.1.
7.4.1. Items that are continued from one meeting to a subsequent meeting shall
be provided preference for consideration by Commission at the subsequent
meeting.
7.5. Joint Meetings. The Commission may jointly meet with another legislative body
(such as the City Council) as a part of any noticed regular meeting or special
meeting of the Commission.
7.6. Emergency Meetings. The Commission may be authorized to hold an
emergency meeting if a majority of the members of the Commission determines
that there is an “emergency situation” as defined by California Government Code
Section 54956.5. The Secretary shall provide notice of the emergency meeting
as required by California Government Code Section 54956.5, which generally
requires notice to be provided one hour prior to the meeting. The Secretary shall
also provide notice to each member of Commission pursuant to Section 5.10 of
this Policy.
7.7. Teleconference Meetings. The Commission may be authorized to connect less
than a quorum of individual members of the Commission to any regular meeting
or special meeting by “teleconferencing” (connecting the Commission members
to the meeting by electronic means, through either audio or video, or both)
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pursuant to the requirements of the Brown Act (California Government Code
Section 54953). The Commission may vote to request authorization from City
Council to connect to a particular meeting by teleconferencing. If the City
Council determines that teleconferencing is warranted for the benefit of the
public and the Commission for that particular situation, the City Council may
direct the Staff Manager to implement a teleconferenced meeting pursuant to the
requirements of the Brown Act.
8. Order of Business for Regular Meetings. The City will endeavor to maintain a
consistent order of business for agenda items for regular meetings pursuant to the
guidelines set forth in this Section 8; however, exceptions may be warranted based
on unusual or unexpected circumstances in order to facilitate the efficient and fair
conduct of the meeting.
8.1. Call to Order. The Chair will call each regular meeting to order.
8.2. Agenda Review. If it is determined (by the Chair, the Staff Manager, or a vote of
Commission) that there is a need for any changes to the order of business for
the agenda in order to facilitate the efficient and fair conduct of the meeting, it is
appropriate to identify the changes at the beginning of the meeting. However,
changes to the order of the agenda may be approved by the Chair or a vote of
the Commission at any time during the Commission meeting.
8.2.1. Factors which may be considered in changing the order of business for
the agenda include: the number of speakers who wish to address the
Commission for particular items, the estimated time required to consider and
act on the items on the agenda, the time available to address items on the
agenda, and any other factors that are unusual or were unanticipated at the
time the agenda was prepared.
8.3. Public Comment.
8.3.1. The Public Comment period provides an opportunity for members of the
public to directly address the Commission on any item of interest to the
public that is within the subject matter jurisdiction of the Commission.
(California Government Code Section 54954.3.)
8.3.2. Unless otherwise specified in Commission Bylaws, or modified pursuant to
Resolution Section 9.1.4, each speaker’s comments will be no more than
three minutes, and will comply with the requirements of this Resolution.
8.3.3. If the subject of the comments is covered under an item on the meeting
agenda for which Commission will separately hear public comments (such
as Hearings and Appeals), the member of the public may be requested to
reserve comments to the appropriate time on the agenda.
8.3.4. If the subject of the comments is covered under an item on the meeting
agenda for which Commission is not required to separately hear public
comments (such as Consent Calendar), the member of the public may make
the comments during the Public Comment period, and/or request
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Commission (subject to approval by the Chair or a vote of the Commission)
to accept public comment prior to taking action on the item.
8.3.5. If the subject of the comments is not covered under an item on the
meeting agenda, the Brown Act strictly limits the Commission’s ability to
respond. (California Government Code Section 54954.2.) Consistent with
the Brown Act, the Commission’s response will be limited to either: (1) the
Chair or a member of Commission may provide, or the Chair may direct City
staff to provide, a brief response to comments made; or (2) a vote of the
Commission may request staff to bring back a report in response to the
comments at a subsequent meeting.
8.4. Consent Calendar. Consent Calendar items are considered routine, and may be
approved by a single vote of the Commission. The Chair or any Commission
member may request that any item be removed from the Consent Calendar so
that Commission action may be taken separately on the item. Public input will be
accepted at this time only if approved by the Chair or a vote of the Commission.
Typically, the Consent Calendar may include items such as approval of minutes,
second reading of ordinances, appropriation of funds, and approval of contracts.
8.5. Administrative Reports. Administrative Report items include reports and
recommendations from City staff that do not require a public hearing prior to
action by the Commission. Public input will be accepted for Administrative
Reports only upon approval by the Chair or a vote of Commission.
8.6. Hearings and Appeals.
8.6.1. Consent Hearing. If an item is required to be noticed as a public hearing,
but the City is not aware of any interest by members of the public to
comment on the item, the item may be listed as a “Consent Hearing.” For
each Consent Hearing item, the Chair shall announce to the public the item
to be considered, and ask if there is anyone present who wishes to be heard
on the item. If anyone wishes to be heard, the item shall be considered
under the processes for a Public Hearing (below). If no person indicates an
interest to be heard, the Commission may consider the public hearing to
have been opened and closed, and the Commission may take action on the
item.
8.6.2. Public Hearings.
8.6.2.1. For each Public Hearing or Appeal, the title of the item to be heard
will be announced, and the Chair shall announce the opening of the
public hearing for the item. The time limits for each speaker set forth
herein may be modified by Commission bylaws. After opening the
public hearing:
8.6.2.2. The Chair or any member of the Commission may request a report
from City staff to summarize the item to be considered, or to address
specific items of concern.
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8.6.2.3. The Chair shall ask each member of Commission to disclose the
nature and substance of any information received prior to the hearing
(that is not included in the information presented during the hearing)
that could be relevant to the decision making process for the item (such
as site visits or communications with constituents).
8.6.2.4. The applicant or appellant shall have the first opportunity to present
testimony. The applicant or appellant shall be provided ten minutes for
the opening statement.
8.6.2.5. Members of the public shall then be provided up to three minutes
each to present testimony or comments during the public testimony
portion of the public hearing (subject to modification pursuant to Section
9.1.4). When the Commission determines that all members of the public
have had an opportunity to present testimony or comments (pursuant to
Subsections 9.1 and 9.3), the public testimony period may be closed by
vote of the Commission. After the public testimony period is closed, it
may be reopened only by a vote of the Commission. Following the
close of the public testimony period, the Commission may request
additional information during the public hearing pursuant to Subsections
8.6.2.7 without necessitating a “reopening” of the public testimony
period.
8.6.2.6. The applicant or appellant shall be provided five minutes for a
closing statement at the end of the public testimony portion of the public
hearing.
8.6.2.7. During the public hearing, the Commission (by the Chair, or a vote
of the Commission) may request additional information from City staff,
the applicant or appellant, or members of the public. In requesting
additional information, the Chair shall have the authority, pursuant to
Resolution Section 9.1, to direct the speaker to limit comments to a
particular topic (avoiding duplication of comments already made), and
to limit comments to a particular amount of time. The Chair shall also
have the authority, pursuant to Resolution Section 9.1, to allow limited
rebuttal testimony, including direction to the rebuttal speaker to limit
comments to a particular topic (avoiding duplication of comments
already made), and to limit comments to a particular amount of time.
8.6.2.8. When the Commission determines it has received sufficient
relevant information to render a decision on the item, the public hearing
may be closed by vote of the Commission. After the public hearing is
closed, it may be reopened only by a vote of the Commission.
8.6.2.9. After closing the public hearing, members of Commission may
deliberate among themselves regarding the information presented
during the hearing. Additional testimony may be taken after the public
hearing is closed only by vote of the Commission to reopen the public
hearing. Members of Commission shall refrain from deliberating on an
item until after the public hearing is closed.
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8.6.2.10. After closing the public hearing, the Commission may take action
on the item.
8.7. Brief Comments by Commission or Staff Manager. A member of Commission or
the Staff Manager may ask a question for clarification, make a brief
announcement, or make a brief report of his or her activities relevant to the
subject matter jurisdiction of the Commission. (California Government Code
Section 54954.2.) An individual member of Commission may request staff to
report back on a matter or place a matter for discussion on a subsequent
meeting agenda (including a motion for reconsideration under Section 10.6.4),
subject to approval of direction to staff by a vote of the Commission. Depending
on the scope of the Commission’s request, the Staff Manager may need to seek
approval from the City Manager or the City Council before devoting City
resources to the request.
8.8. Closed Session. The last item on the public agenda shall be the announcement
of items of closed session (if any), pursuant to Section 7.2 of this Resolution.
8.8.1. Each member of Commission and City staff shall maintain the
confidentiality of any written or oral information provided during closed
session meetings.
8.8.2. No member of Commission or City staff shall reveal any confidential
information communicated during closed session except to the extent
authorization is provided by a vote of City Council.
8.9. Report Actions Taken In Closed Session. This is a report of action taken in
closed session, if any, as required pursuant to California Government Code
Section 54957.1.
8.10. Adjournment. After the Chair determines that all items on the agenda have
been addressed by the Commission, which determination may be overridden by
a vote of the Commission, the Chair shall announce the meeting is adjourned.
This determination that a meeting is adjourned is distinguished from a “motion to
adjourn to another time and place” (as set forth in Subsection10.4.4.1).
9. Conduct of the Meetings.
9.1. Chair’s Authority to Preside Over Commission meetings. The Chair shall preside
at all meetings of the Commission, and shall exercise the authority set forth in
this Resolution. In the Chair’s absence at a Commission meeting, the Vice-Chair
shall have all power and authority of the Chair. In the absence of the Chair and
the Vice-Chair at a Commission meeting, a majority of the remaining members
of the Commission shall appoint a chair to exercise the power and authority of
the Chair for that meeting (or portion of a meeting).
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9.1.1. The Chair shall facilitate and guide the meeting in order to achieve the
goals of this Resolution.
9.1.2. The Chair shall establish seating assignments for members of
Commission.
9.1.3. The Chair shall be entitled to make and second motions, and vote on all
items presented to Commission for action.
9.1.4. The Chair may modify (increase or decrease) any time requirement for
any speaker (whether a member of the public, or an applicant or appellant at
a public hearing), or limit the total amount of time available for any item on
the agenda, or limit the total number of speakers for any item on the
agenda, or request a spokesperson be identified to represent a group of
people to minimize duplication of presentations, to the extent it is
determined that one or more of these modifications will facilitate the efficient
and fair conduct of the meeting. (California Government Code Section
54954.3(b).) Although a modification of the time requirements for speakers
may result in one or more speakers having more or less time than others to
present comments to the Commission (based on a weighing of factors such
as those set forth in Sections 8.2, 8.6.2.7, and 9.1.5 of this Resolution), any
modifications of the time requirements for speakers shall be based on
factors that may be equitably applied to all speakers. The Chair may use
speaker cards to facilitate the goals set forth in subsections 9.1 and 9.3.
9.1.5. If the Chair determines that any person is out of order based on a lack of
compliance with the requirements of this Resolution, the Chair may direct
appropriate action to restore order to the meeting.
9.1.5.1. Actions that may be considered out of order by the Chair may
include any activity that is inconsistent with the requirements of this
Resolution, presentations that are unnecessarily repetitive,
presentations that are outside the subject matter jurisdiction of the
Commission, presentations that are outside the scope of the agenda
item under consideration, presentations made without being recognized
by the Chair (for example, speaking from the audience instead of from
the lectern, interrupting other speakers recognized by the Chair, or
continuing to speak after being identified by the Chair as being out of
order), and acting in a manner that is threatening, violent, disruptive, or
otherwise impedes the orderly conduct of the Commission meeting.
9.1.5.2. Nothing in this Resolution shall prohibit public criticism of the City’s
policies, procedures, programs, or services, or of the acts or omissions
of the Commission. (California Government Code Section 54954.3(c).)
9.1.5.3. Actions that may be taken to restore order to the meeting may
include: call the person to order and require the person to comply with
any rule set forth in this Resolution, require the person to terminate his
or her remarks, ordering a recess of a specified duration (e.g., 15
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minutes), ordering the removal of any person who is found to be willfully
disrupting the meeting.
9.2. Rules of Decorum for Members of Commission.
9.2.1. Each member of Commission shall maintain order and decorum in
accordance with this Resolution, and shall respect the Chair’s authority to
conduct each meeting of Commission in accordance with this Resolution,
and shall mutually respect the rights of each member to express their
positions.
9.2.2. No member of Commission shall disturb, disrupt, or interrupt any other
member of Commission, any member of City staff, or any member of the
public who is speaking in accordance with this Resolution.
9.2.3. Once a Commission member is recognized to speak, no other person
shall interrupt the Commission member, unless the Commission member is
called to order by the Chair.
9.2.4. Each member of Commission shall confine his or her remarks to the
agenda item under consideration, and shall speak only when recognized by
the Chair (unless otherwise provided by this Resolution). An attempt by any
member of Commission to make comments or motions that are not related
to the item under consideration, or to make repetitive motions on items that
have already been considered by Commission, shall be considered out of
order.
9.2.5. Each member of Commission shall have a right to be heard on each item
on the agenda. No Commission member shall speak more than once on any
item on the agenda until every other Commission member has had an
opportunity to speak.
9.3. Rules of Decorum for Members of the Public.
9.3.1. During meetings of the Commission, members of the public will have
opportunities to address the Commission, as identified in the written agenda
for that meeting (See Sections 6.3, 7.1, and 8 of this Resolution). Members
of the public desiring to address the Commission shall come forward to the
lectern microphone, and shall be requested (but not required) to provide
their name, city of residence, and organization represented (if any).
9.3.2. Unless otherwise specified in this Resolution (e.g., public hearings under
Section 8.6.2 of this Resolution), or approved by the Chair, each person
shall be limited to one presentation per agenda item (no more than three
minutes per presentation).
9.3.2.1. In order to monitor compliance with this requirement, the Secretary
will indicate (with auditory or visual means) when one minute remains,
and when the speaker’s time has ended.
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9.3.2.2. If a member of the public needs additional time for a particular
agenda item, a request should be submitted for approval by the Chair
prior to beginning the presentation.
9.3.3. Comments made by the public during Commission meetings should be
directed to the Commission. It is out of order for a member of the public to
attempt to directly address members of the audience or members of City
staff.
9.3.4. If a member of the public desires to present written communications to the
Commission during the Commission meeting, the communication shall be
submitted to the Secretary. The Secretary will identify the communication as
a part of the minutes of the meeting. Members of the public are requested to
provide 15 copies of each written communication so that sufficient copies
are available for review during the meeting by Commission, City staff, and
members of the public.
9.3.5. Unless otherwise authorized by the Chair, members of the public shall
present their comments to the Commission without seeking a dialogue with
the Commission. At the close of all comments to the Commission for a
particular agenda item, the Chair may direct a response by City
representatives to comments made by members of the public.
9.4. Written Reports and Communications to Commission.
9.4.1. For each Commission meeting, in addition to the meeting agenda
(described in Sections 6.3 and 7.1 of this Resolution), City staff may prepare
a written set of agenda reports (hereinafter “Agenda Reports”). The Agenda
Reports are provided directly to each member of Commission, and are
available for public review upon request to the Secretary, at least 72 hours
prior to a regular meeting of the Commission and 24 hours prior to a special
meeting of the Commission.
9.4.1.1. The Staff Manager and the Secretary endeavor to provide
documents to each member of Commission (and make the documents
available for public review) as early as possible prior to the Commission
meeting, particularly for controversial or complicated agenda items (for
which there may be voluminous documents included in the agenda
report).
9.4.1.2. The Staff Manager and the Secretary endeavor to make documents
available for public review in a range of locations (such as the public
library, and the internet) that will facilitate public access to public
information.
9.4.2. At least one public review set of the Agenda Reports will be available
during the Commission meeting. The Secretary will endeavor to provide
sufficient public review copies of the Commission agenda and the Agenda
Reports to meet the public demand for each meeting.
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9.4.3. If a member of the public requests a written communication be presented
to the Commission as a part of a Commission meeting, it may be identified
in the minutes as a part of the administrative record of the meeting, subject
to the following:
9.4.3.1. If the written communication directly relates to an item on the
agenda, and it is received by the Secretary no later than 8 calendar
days prior to the meeting, a copy of the communication will be included
with the Agenda Reports for that meeting, and the communication will
be identified in the minutes of the meeting.
9.4.3.2. If the written communication directly relates to an item on the
agenda, and it is received by the Secretary prior to or during the
Commission meeting (but later than 8 calendar days prior to the
meeting), the Secretary will provide a copy of the communication to
each member of Commission, and the communication will be identified
in the minutes of the meeting.
9.4.3.3. If the written communication is within the subject matter jurisdiction
of the Commission but it does not directly relate to an item on the
agenda, the Secretary will provide a copy of the communication to each
member of Commission, and it will be identified in the minutes of the
meeting.
9.4.3.4. Notwithstanding the above, if the Staff Manager determines (in
consultation with the City Attorney) that a written communication is
either: (a) outside the subject matter jurisdiction of the Commission, or
(b) disruptive to the orderly conduct of the Commission meeting
(pursuant to the criteria set forth in Sections 9.1.5 of this Resolution),
then: (y) the Secretary will provide a copy of the communication to each
member of Commission, but (z) the written communication will be
excluded from the meeting and excluded from the minutes of the
meeting.
9.4.3.5. Any public record that relates to an agenda item for a Commission
meeting, and is distributed to a majority of the members of Commission
within 72 hours prior to the meeting, shall be made available for public
inspection pursuant to California Government Code Section 54957.5,
and shall be identified as part of the minutes of the meeting.
9.5. Meeting Breaks.
9.5.1. The Chair shall have the authority to establish reasonable comfort breaks
during the meeting.
9.5.2. The Commission may establish, by written rules of procedure or by-laws,
times after which no new items shall be commenced unless authorized by a
vote of the Commission. For example, for the City Council: No new item will
be commenced after 10:00 p.m., unless authorized by a vote of the City
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Council; and meetings will be adjourned at 12:00 a.m., unless extended (in
30 minute increments) by a vote of the City Council.
9.6. Parliamentarian. The parliamentarian shall respond to questions from the Chair
or any member of Commission regarding procedure and compliance with this
Resolution. For any Commission staffed by an attorney from the City Attorney’s
Office, that attorney shall be the parliamentarian; otherwise, the Staff Manager
shall be the parliamentarian. The Chair shall maintain the authority to make final
decisions regarding the conduct of the meeting in compliance with this
Resolution. The Chair’s decision may be overridden by a vote of the
Commission.
10. Commission Voting.
10.1. Quorum. Unless otherwise specified by City Council ordinance or resolution, a
majority of the total membership of a Commission shall constitute a quorum of
the Commission. If less than a quorum of the Commission is in attendance at a
Commission meeting, no actions may be taken on behalf of the Commission,
and the meeting may be adjourned pursuant to California Government Code
Section 54955.
10.2. Responsibility to Vote. Each member of Commission in attendance at a
Commission meeting has a responsibility to vote on each item presented to
Commission for action, unless the member of Commission recuses himself or
herself or abstains from voting in accordance with the following:
10.2.1. Recusal. If a member of Commission has a reasonable good faith belief
that the member of Commission is disqualified from voting on an item based
on any law related to financial conflicts or bias (for example, California
Government Code Sections 1090, 1126, or 87105; see summary of issues
to consider related to potential conflicts of interest set forth on Exhibit “C,”
attached hereto and incorporated herein by reference), the member of
Commission shall follow the following procedure:
10.2.1.1. Prior to the Commission meeting, the member of Commission may
confer with the Fair Political Practices Commission if there is any doubt
as to whether recusal is required, and the member of Commission shall
notify the Staff Manager of the potential recusal as early as possible.
10.2.1.2. During the Commission meeting, and immediately prior to the item
being considered, the member of Commission shall announce the
intention to recuse himself or herself from voting on the item, and
disclose the basis for recusal in sufficient detail to be understood by the
public.
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10.2.1.3. Prior to the item being considered, the member of Commission
shall leave the meeting room until after discussion and action on the
item is completed. The member of Commission shall not vote on the
item. Provided, however, if the item is on the consent calendar, the
member of Commission need not leave the meeting room as long as
the Commission member does not vote on the item.
10.2.1.4. The member of Commission shall not use his or her official position
to influence the Commission’s or the City’s action on the item.
10.2.1.5. The member of Commission shall not be counted as a member of
the quorum of the Commission for that item. In other words, for the
purpose of counting votes for an item, a recusal by a member of
Commission shall be equivalent to an excused absence.
10.2.2. Abstention. If a member of Commission has any legitimate basis for not
voting on a particular item (other than that set forth in Section 10.2.1 of this
Resolution), the member of Commission may abstain from voting by
complying with the following procedures:
10.2.2.1. Prior to the Commission meeting, the member of Commission shall
notify the Staff Manager of the potential abstention as early as possible.
10.2.2.2. During the Commission meeting, and prior to the vote on the item
being considered, the member of Commission shall announce the
intention to abstain from voting on the item, and disclose the basis for
abstention in sufficient detail to be understood by the public. Examples
of legitimate bases for abstention include:
10.2.2.2.1. The member of Commission does not have sufficient
information regarding the item under consideration (for example,
the item was previously considered by the Commission in the
member’s absence, and the member of Commission did not have
an opportunity to review the record of Commission’s previous
consideration).
10.2.2.2.2. The member of Commission is concerned about the
perception of personal or financial conflict even if there is no
reasonable good faith belief of a required disqualification (e.g., an
effect on the financial interest of a relative [other than a spouse or
dependent of the member of Commission]).
10.2.2.3. Any member of Commission who abstains from voting on an item
shall be counted as a member of the quorum of the Commission, and
the member shall be counted as acquiescing to the vote of the majority
of those members voting on the item; provided, however, that member
shall not be entitled to make a motion or make a second on the item,
and that member shall not be entitled to make a motion for
reconsideration. [As an example of counting votes of abstentions or
recusals: (a) 2 yes, 2 no, and 1 abstain would fail; (b) 2 yes, 1 no, and 2
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abstain would pass; (c) 2 yes, 2 no, and 1 recuse would fail; and (d) 2
yes, 1 no, and 2 recuse would pass.].
10.2.3. Rule of Necessity. A member of Commission who is recused from acting
on an item pursuant to Section 10.2.1 of this Resolution, may be authorized
to vote on that item if the member’s participation is found to be “legally
required” (as defined by California Government Code Section 87101). The
fact that a member’s vote is needed to break a tie does not make
participation “legally required”.
10.3. Processing Motions for Commission Action.
10.3.1. At the invitation of the Chair, the Chair or any member of Commission
may make a motion for Commission to take action on an item. The motion
shall be clearly presented as: “I move that …” and clearly state the
substance of the motion. The motion may be stated by reference to the Item
number on the Commission agenda, which shall be interpreted to mean a
motion to approve the staff recommendation included in the Commission
Reports for the item. For example:
10.3.1.1. “I move approval of the consent calendar.”
10.3.1.2. “I move approval of staff’s recommendation for Item [state the
number of the item].”
10.3.1.3. “I move approval of staff’s recommendation for Item [state the
number of the item], with the following amendments …” and clearly
state the substance of the amendments.
10.3.2. Before calling for the vote on an item, the Chair or any Commission
member other than the maker of the motion shall clearly second the motion.
Before the Chair calls for the vote on an item, the Staff Manager, Secretary,
or a member of staff directly involved in presenting the item to Commission,
may request a clarification of the motion.
10.3.3. Before calling for the vote on an item, the Chair shall identify the makers
of the motion and the second, and the Chair shall have the motion clearly
repeated by, either: the Chair, the maker of the motion, the Secretary, or a
member of City staff.
10.3.4. After the motion is moved, seconded, and repeated, the Chair may invite
further discussion on the item, or the Chair may call for the vote on the
motion (per Section 10.5 of this Resolution). If there is substantial discussion
between the time the motion is repeated and the time the vote is called, the
Chair may request the motion to be repeated again per Section 10.3.3 of
this Resolution.
10.4. Processing Modified or Multiple Motions for Commission Action.
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10.4.1. Prior to a Commission vote on a motion, the maker of the motion may
withdraw the motion without consent of any other member of Commission.
10.4.2. Prior to a Commission vote on a basic motion (under Section 10.3 of this
Resolution), any member of Commission may make a motion to amend (or a
substitute motion). A motion to amend may include a motion to divide the
basic motion into two or more separate motions. The motion to amend (or
substitute motion) shall be clearly moved, seconded, and repeated, pursuant
to Section 10.3 of this Resolution.
10.4.2.1. If a motion to amend (or substitute motion) is made and seconded,
the Commission shall vote on the amended motion (or substitute
motion) before voting on the basic motion. If the amended motion (or
substitute motion) is approved by Commission, then the basic motion
shall be rendered moot. If the amended motion (or substitute motion) is
not approved by Commission, then the Chair may call for a vote on the
basic motion.
10.4.3. In addition to the basic motion (under Section 10.3 of this Resolution),
only one substantive motion to amend (or one substitute motion) shall be in
order at any one time. Before a second motion to amend (or substitute
motion) will be in order, the first motion to amend (or substitute motion) must
be voted on by Commission or withdrawn by the maker of the motion.
10.4.4. Procedural Motions. Notwithstanding the limitation of Section 10.4.3, in
addition to the basic motion and any substantive motion to amend (or
substitute motion), the following procedural motions shall be in order by any
member of Commission at any time; and, upon motion and second, the
Chair shall immediately call for a vote on the procedural motion without
debate (unless otherwise specified below):
10.4.4.1. Motion to Adjourn to Another Time and Place. A motion to adjourn
to another time and place shall identify the date, time, and place to
which the meeting shall be adjourned (pursuant to California
Government Code Section 54955); and, before calling for the vote on
the motion, the motion shall be debatable only as to the date, time, and
place of the meeting.
10.4.4.2. Motion to Recess. A motion to recess shall identify the length of the
recess; and, before calling for the vote on the motion, the motion shall
be debatable only as to the length of the recess.
10.4.4.3. Motion to Continue or Table. A motion to continue or table
consideration of an item to a later date shall identify the date, time, and
place to which the item will be reopened for consideration by the
Commission; and, before calling for the vote on the motion, the motion
shall be debatable only as to the date, time, and place at which the time
will be brought back to Commission. The Commission may direct the
Staff Manager to bring the item back to Commission on a date
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uncertain, subject to providing appropriate meeting notices per Sections
6 and 7 of this Resolution.
10.4.4.4. Motion to Limit Debate. A motion to limit debate on a substantive
motion previously moved and seconded may either require the Chair to
immediately call for the vote on the substantive motion, or it may
require the Chair to limit debate on the substantive motion for a
specified period of time. This motion is sometimes also referred to as a
“call for the question.”
10.4.4.5. Point of Order. If any Commission member believes that a rule of
conduct for the meeting (including any rule set forth in this Resolution)
is not being followed, the Commission member may identify the issue
by raising a point of order. If the Chair agrees with the point, then the
conduct of the meeting shall be modified to comply with the appropriate
rule. If the Chair disagrees with the point, the Chair may be overridden
by a vote of the Commission on a motion to comply with the particular
point of order.
10.5. Counting Votes for Commission Action.
10.5.1. In calling for a vote by Commission on a motion made and seconded in
accordance with Sections 10.3 or 10.4 of this Resolution, the Chair may call
for a voice vote to identify each member of Commission in favor of the
motion and each member of Commission against the motion. If the vote of
each member of Commission may not be clearly determined by voice vote,
the Chair may request a roll call vote (by voice or by voting machine).
10.5.2. At the conclusion of the vote, the Chair shall announce the results of the
vote. If the vote is not unanimous, the Chair shall identify each member
voting in favor and against the motion. For example:
10.5.2.1. “The Motion for Item [state the number of the item] is approved by
unanimous vote.”
10.5.2.2. “The Motion for Item [state the number of the item] is approved by a
vote of 4 to 1; Commission member X voting against the motion.”
10.5.2.3. “The Motion for Item [state the number of the item] is rejected by a
vote of 4 to 1; Commission member X voting in favor.”
10.5.3. Unless otherwise required by law (including any State law, or City Council
ordinance or resolution), in order for any action to be taken by Commission,
it must be approved by a majority vote of the quorum of the Commission in
attendance at a Commission meeting. Therefore, for example, if the
Commission consists of a total of five members with a three member
quorum, and if only three members of Commission are in attendance at a
Commission meeting, only two members of Commission are required to vote
in favor of an action in order for it to be approved.
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10.5.4. Examples of laws that require a “super-majority” vote of Commission
include:
10.5.4.1. A “majority of the members” of Commission are required to approve
an “emergency situation” in order to hold an emergency meeting of
Commission (as referenced in Section 7.6 of this Resolution). In other
words, if the Commission consists of a total of five members, three of
the five members of Commission must vote to approve the “emergency
situation,” even if only three members are in attendance at the meeting
at which the vote is taken.
10.5.4.2. The Commission may take action on an item not included on the
Commission agenda if there is a two-thirds vote of the members of
Commission determining that there is a need to take immediate action
and that the need to for action came to the attention of the City
subsequent to the Commission agenda being posted. Thus, if the
Commission consists of a total of five members, four members of
Commission must vote to approve the action. (California Government
Code Section 54954.2(b).)
10.5.5. Confirming findings or resolution. If a Commission action on an item
requires the Commission to take an action or make findings that are not
included in the written Agenda Report, the Commission may direct the Staff
Manager to: (a) prepare a resolution confirming the findings to support an
action that Commission intends to take, and (b) bring the resolution back to
Commission for consideration and approval at a subsequent Commission
meeting. When the resolution of findings is brought back to Commission for
action, the resolution may be placed on the consent calendar for final action.
10.6. Motion to Reconsider.
10.6.1. After a vote on an item is taken by the Commission in accordance with
this Resolution, that item shall be considered final by the Commission, and it
may be reconsidered only in accordance with this Section 10.6.
10.6.2. Except to the extent reconsideration of an item is governed by particular
legal requirements, an action taken by Commission may be reconsidered
only if: (a) a member of the Commission who voted in the majority (or super-
majority, if required for approval of the item) either files a written request for
reconsideration with the Secretary, or makes an oral request for
reconsideration during a meeting of the Commission; and (b) the request for
reconsideration is received by the Secretary prior to receipt of a timely
challenge (pursuant to Section 10.7 of this Resolution), and within ten (10)
calendar days after the Commission action.
10.6.3. If a request is made (pursuant to Section 10.6.2, above) at the same
Commission meeting and prior to action on the next item on the Commission
agenda, the Commission may vote on the request for reconsideration at that
time. If the motion for reconsideration is seconded and approved by a vote
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of Commission, the Chair may invite a new substantive motion regarding the
item at that time (e.g., repeal the previous action, and take a different or new
substantive action).
10.6.4. If the request is made beyond the time limits of Section 10.6.3 (above),
but the request is made during a public meeting of the Commission within
the time limits of Section 10.6.2 (above), the Commission may vote on the
procedural request for reconsideration at that time. If the procedural motion
for reconsideration is seconded, and approved by a vote of Commission, the
Commission shall identify the Commission meeting at which the substance
of the item shall be scheduled for reconsideration. The meeting for
reconsidering the substance of the item shall be publicly noticed in the same
manner as the notice for the initial action.
10.6.5. If the request is made beyond the time limits of Section 10.6.3 (above),
but the request is submitted in writing to the Secretary within the time limits
of Section 10.6.2 (above), the Secretary shall schedule the procedural
request for reconsideration at the next available meeting of the Commission.
If the procedural motion for reconsideration is seconded, and approved by a
vote of Commission, the Commission shall identify the Commission meeting
at which the substance of the item shall be scheduled for reconsideration.
The meeting for reconsidering the substance of the item shall be publicly
noticed in the same manner as the notice for the initial action.
10.6.6. Notwithstanding the limitations set forth above for reconsideration of a
vote taken by Commission: (a) the Commission may, at any time, consider
the rescission or repeal of any final action which is not quasi-judicial by
complying with all necessary legal requirements, including those set forth in
this Resolution for the establishment of items for consideration by
Commission; and (b) the Commission shall reconsider any item upon
direction from the City Council.
10.7. Challenging Commission Decisions.
10.7.1. To the extent a Commission is authorized by State law or City Council
ordinance to take final action on a quasi-judicial decision that is not
appealable to the City Council, the time limit within which to commence any
lawsuit or legal challenge to that quasi-judicial decision made by the
Commission is governed by California Code of Civil Procedure Section
1094.6, unless a shorter limitation is specified by any other provision of law.
Under Section 1094.6, any lawsuit or legal challenge to any quasi-judicial
decision made by the Commission must be filed no later than the 90th day
following the date on which the decision becomes final. Any lawsuit or legal
challenge which is not filed within the 90-day period will be barred. If a
person wishes to challenge the nature of a Commission action in court, that
person may be limited to raising only those issues that they or someone else
raised at the meeting at which the action was taken, or in written
correspondence delivered to the Commission at or prior to the meeting. In
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addition, judicial challenge may be limited or barred where the interested
party has not sought and exhausted all available administrative remedies.
10.7.2. To the extent a Commission action is not a final quasi-judicial decision
subject to Resolution Section 10.7.1, above, the action shall be appealable
in accordance with applicable procedures established by City Council
ordinance or resolution.
11. Meeting Minutes and Recordings.
11.1. The Secretary shall keep an accurate written record of the proceedings of the
Commission in the form of meeting minutes. Unless otherwise specified by City
Council ordinance or resolution, the form of the minutes shall comply with this
Section. The meeting minutes shall be in the form of “action minutes.” After the
minutes are recorded by the Secretary, the minutes shall be brought back to
Commission on the consent calendar for review, revisions to correct
inaccuracies, and approval of the Commission. The minutes shall include the
elements identified in this Resolution, including the following:
11.1.1. Date, time, and place of the meeting as scheduled, and as actually
occurred (including the starting and ending times for the meeting and any
recesses taken during the meeting).
11.1.2. The type of meeting (as described in Sections 6 and 7 of this Resolution).
11.1.3. An identification of each item under consideration by Commission for the
meeting.
11.1.4. The method by which notice was provided for the meeting, and for each
item on the agenda.
11.1.5. The names of each member of Commission in attendance and each
absent member of Commission. If a member of Commission arrives late or
leaves early, the time of arrival or leaving shall be identified.
11.1.6. A recordation of each vote taken during the meeting, including a clear
identification of the maker of the motion and second, votes in favor, votes
opposed, absences, recusals, and abstentions. The recordation of each vote
shall include an identification of whether the motion was approved or failed,
including an identification of any “super-majority” voting requirement (See
Section 10.5 of this Resolution).
11.1.7. An identification, by specific title and/or City numbering system, of each
resolution adopted, or other action taken, by the Commission.
11.1.8. Testimony presented during Commission consideration of a hearing,
appeal, or other action item shall identify the name of the speaker and a
concise summary of the position presented.
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11.1.9. Any documents or physical evidence presented to Commission as a part
of the record of proceedings in support of Commission’s action on an item.
11.1.10. For the Public Comment portion of the meeting, the minutes will identify
the name of the speaker and a concise summary of the topic presented.
11.1.11. Identify the date, time, and place to which any item is continued, or to
which the meeting is adjourned.
11.2. The City may choose to record Commission meetings using video or audio
recording devices. However, any such recording shall be in addition to the
meeting minutes described above.
11.3. Members of the public may record Commission meetings, using video or audio
recording devices, provided that the recording is not disruptive to the conduct of
the meeting. (California Government Code Section 54953.5.)
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City Commissions – Brown Act Overview – Updated November 13, 2020
Policy Resolution No. 10, Exhibit “B”
Page 1 of 3
POLICY RESOLUTION NO. 10 – EXHIBIT “B”
OVERVIEW OF OPEN MEETING LAWS UNDER THE “BROWN ACT”
(Updated November 13, 2020)
The “Ralph M. Brown Act” (frequently referred to as the “Brown Act”) is the State
law that requires the deliberations and actions of every “legislative body”
(including the City Commissions) be conducted openly, with prior public notice,
and an opportunity for the public to provide input on decision making activities.1
The Brown Act requires that each Commission “meeting” (defined in Section 1,
below) either: (a) fall within one of the narrow exceptions that have been
established by the Legislature (defined in Section 2, below); or (b) follow
particular procedural requirements so that the meeting is considered “open and
public” (defined in Section 3, below).
Any “meeting” of a majority of members of a Commission that violates the Brown
Act may result in criminal or civil penalties, attorney’s fees, and potential
invalidation of the Commission’s actions. Therefore, please contact the City
Attorney’s Office if there is any question regarding the requirements of the Brown
Act.
1.Definition of “meeting.”
a.As a general rule, there is a “meeting” of a City Commission whenever
a majority of the Commission (i.e., three members of a five-member
Commission) congregate at the same time and location to hear,
discuss, deliberate, or take action upon any item that is within the
subject matter jurisdiction of the Commission.
b. Prohibited “serial meeting.” There is a serial “meeting” of the
Commission, even if it occurs over time in different locations, if a
majority of members use a personal or technological intermediary
(e.g., phone, text, e-mail, letter, or personal messenger) to discuss,
deliberate, or take action on any item within the subject matter
jurisdiction of the Commission. Thus, if there is a five-member
Commission, Commissioner “A” may speak with Commissioner “B”
regarding Commission business. However, Commissioner “A” and
Commissioner “B” would then be precluded from discussing the same
topics with any other member of the Commission, since to do so would
mean that three members of the Commission would have “serially”
discussed the same topic.
1 The full text of the Brown Act (California Government Code Sections 54950 – 549563) is
available on the City Attorney's Webpage on the City’s website. A link to the League of California
Cities publication “Open & Public: A Guide to the Ralph M. Brown Act” is available on the website
of the League of California Cities.
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i. Social media exception to “serial meeting.”2 Effective January 1,
2021, a member of a Commission may use a social media
platform that is open and accessible to the public to answer
questions from the public, provide information to the public, or
solicit information from the public regarding a topic within the
subject matter jurisdiction of the Commission; provided that the
members of the Commission do not directly communicate with
one another regarding Commission business (i.e., members of
the Commission may not directly respond in any way [including
an emoji] to a message from another Commissioner).
2. “Meeting” exceptions. Congregations of a majority of a Commission are not
subject to other requirements of the Brown Act, if: (i) the members of the
Commission do not discuss among themselves, other than as a part of the
scheduled program, business of a specific nature that is within the subject
matter jurisdiction of the Commission, and (ii) the congregation fits within one
of the following limited and narrowly interpreted exceptions:
a. A conference or similar gathering “open to the public” that involves a
discussion of issues of general interest to the public or to public
agencies similar to the City.
b. An “open and publicized” meeting organized by a person or
organization other than the City, to address a topic of local community
concern.
c. An “open and noticed” meeting of another body of the City, or of a
legislative body of another local agency.
d. A purely social or ceremonial occasion.
3. Definition of an “open and public” meeting, for compliance with the Brown
Act.” The “open and public” procedural requirements of the Brown Act are
outlined in more detail in the body of Policy Resolution No. 10 (at the Policy
Section numbers identified below), including the following:
a. Staff will prepare and post the written agenda. (Policy Sections 6 and
7.)
b. Meetings will be conducted at a location that is accessible to the
public. (Policy Sections 6.2 and 7.1.3.)
c. Meetings will be conducted in accordance with the written agenda. For
items not on the agenda, there will be an opportunity for the public to
address the Council (for matters within the subject matter jurisdiction of
2 California Government Code Section 54952.2(b)(3).
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Policy Resolution No. 10, Exhibit “B”
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the Council), but the Council is limited in its ability to respond to items
not on the agenda. (Policy Sections 8, and 8.3.5.)
d. The Council will provide opportunities for public participation, and allow
the public to record the meeting; but the Council is authorized to limit
disruptive conduct. (Policy Sections 9 and 11.2.)
e. The Council will take its actions in a clear and open manner, and no
actions will be taken by secret ballot. (Policy Sections 9 and 10.)
f. The Council will make records related to the meeting available to the
public. (Policy Section 9.4 .)
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City Commissioners -Conflicts of Interest Overview – Updated November 13, 2020
Policy Resolution No. 10, Exhibit “C”
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POLICY RESOLUTION NO. 10 – Exhibit “C”
OVERVIEW OF CONFLICTS OF INTEREST LAWS AND REGULATIONS
(Updated November 13, 2020)
The primary purposes of this overview are to: (a) assist each member of a City
Commission (“Commissioner”) in identifying potential “conflicts of interest” (a City
action that has a potential impact, positive or negative, on a Commissioner’s
personal interest), and (b) encourage Commissioners to seek legal assistance
from the City Attorney’s Office if there is any potential conflict of interest
related to a City action, in order to (c) identify the steps that must be taken by
the Commissioner to avoid any conflict of interest.
This overview is organized in four numbered sections, including: (1) Identifying
and Avoiding Potential Conflicts of Interest, (2) Financial Disclosure
Requirements (FPPC Forms 700 and 806), (3) Ethics Training and Education
(AB 1234), and (4) Aspirational Ethical Guidelines, and Additional Resources.
1. Identifying and Avoiding Potential Conflicts of Interest. There are five
potential categories of conflict of interest laws, summarized below, that define
the parameters by which a Commissioner must take actions to avoid a conflict
between a personal interest and a City action, including: (a) the Political
Reform Act, as implemented by the Regulations of the Fair Political Practices
Commission (“FPPC”);1 (b) Interests in City Contracts (Government Code
Section 1090); (c) common law conflicts of interest (such as bias and due
process); (d) common law conflicts of interest based on incompatibility of
office; and (e) City Charter Section 103 (prohibitions on accepting gifts).
a. Political Reform Act. As a general rule, no Commissioner shall make,
participate in making, or in any way attempt to use his or her City
position to influence a City decision if it is reasonably foreseeable that
the City decision will have a material financial effect on a financial
interest of the Commissioner.2 The key elements of this general rule
are summarized, below:
i. Identify the Commissioner’s “financial interest” that could
potentially be affected by the City action, including: (1) an
ownership or rental interest in real property worth at least
$2,000, (2) a source of income of $500 or more within 12
months of the action, (3) a source of a gift of $500 or more
within 12 months of the action,3 (4) a business entity investment
worth at least $2,000, (5) a business entity in which
1 California Government Code §§ 87100, et seq.; and California Code of Regulations, Title 2,
Division 6, (the “FPPC Regulations”), particularly Chapter 7 (§§ 18700, et seq.)
2 FPPC Regulations § 18700.
3 California Government Code § 89503, and FPPC Regulations § 18940.2 (the $500 threshold
will be increased to $520 as of January 1, 2021; and it is updated December 31, 2022, and every
two years thereafter).
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Commissioner is an officer, director, or employee, or (6)
personal finances of the Commissioner.
• Under State law, a Commissioner’s financial interests are
deemed to include the financial interests of the
Commissioner’s spouse or dependent child.4
• Immediate Family Members. While State law defines the
interest of a family member to be based on whether the
family member is a spouse or dependent, any City action
that relies on federal funding is subject to the much
tighter restrictions of federal law. Under federal law, a
Commissioner must avoid a conflict involving “immediate
family ties” which is defined to include (whether by blood,
marriage, or adoption): the Commissioner’s spouse,
parent (including a stepparent), child (including a
stepchild), brother, sister (including a stepbrother or
stepsister), grandparent, grandchild, and in-laws.
ii. Is it “reasonably foreseeable” that a City decision will have any
financial effect on a “financial interest”? (1) If the financial
interest is “explicitly involved” (e.g., a named party, applicant, or
property) in the City decision, then “reasonable foreseeability” is
presumed. (2) If the financial interest is not “explicitly involved,”
then the financial effect is reasonably foreseeable if it is a
“realistic possibility” but more than “hypothetical or theoretical.”
iii. Will the reasonably foreseeable financial effects be “material”? If
the financial interest is directly involved in the City decision,
“materiality” is presumed. Otherwise, the “materiality” element of
the analysis includes far too many variables to summarize in
this overview. It is recommended that questions regarding
“materiality” be discussed with the City Attorney’s Office.
Emphasizing that this is not an exhaustive list, some examples
of likely “material” financial effects on financial interests include
City decisions that: (1) impact property within 1,000 feet of
Commissioner’s real property interest, or impact the value,
development potential, or ability to use the real property; (2)
cause a measurable financial benefit or loss to the
Commissioner’s personal finances, or to an individual who is a
financial interest (e.g., source of income or gift); or (3) contribute
to a change in the value of a privately held business (or stock
value of a publicly traded business) that is a financial interest. A
financial effect is not material if it is “nominal, inconsequential,
or insignificant.”
4 California Government Code § 82029, and FPPC Regulations § 18700.
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iv. Is there any exception that permits the Commissioner to
participate in a City decision that has a reasonably foreseeable
material financial effect on a financial interest? Again, although
it is not feasible to provide a comprehensive list of exceptions,
some examples of situations in which a Commissioner is
permitted to participate include: (1) The material financial effects
of a City decision on the Commissioner are indistinguishable
from the effects on the public generally. (2) The Commissioner
is “legally required” to participate in the decision, generally due
to a majority of Commissioners having a material financial
interest; which requires a random selection of Commissioners
necessary to establish a quorum. (3) The City decision can be
segmented into a portion for which the Commissioner does
have a material interest (which is considered first, without
participation by the Commissioner), and a separate portion for
which the Commissioner does not have a material interest
(which is considered second, with participation by the
Commissioner).
v. Process for disclosure and recusal:5 If it is reasonably
foreseeable that a City decision will have a material financial
effect on a Commissioner’s financial interest, and there is no
applicable exception that permits the Commissioner to
participate in the decision, then:
• The Commissioner is precluded from making,
participating in making, or in any way attempting to use
his or her official position to influence the City decision
(this includes any negotiations, and any contact by the
Commissioner with any other City official or employee,
for the purpose of attempting to influence the City
decision).
• If the Commissioner is on the dais during a Council
meeting, when the item is announced (and before
substantive discussion on the item begins), the
Commissioner is required to: (a) disclose the financial
interest and intent to recuse from any participation in the
discussion, and (b) step down from the dais and leave
the room while the item is being discussed (however, a
Commissioner may remain in the room, and simply
recuse from voting, if the item is on the consent
calendar).
• As exceptions to the above processes: (a) the
Commissioner is permitted to appear before the
Commission if the Commissioner recuses and steps
down from the dais, and is appearing as a member of the
5 FPPC Regulations § 18704.
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general public for the sole purpose of presenting his or
her personal interests (and not in representation of
another); and (b) if the Commissioner is a design
professional (architect, engineer, or similar), the
Commissioner is permitted to submit design drawings to
the City on behalf of a client, and discuss the design with
City staff.
b. Interests in City Contracts (Government Code Section 1090).
Under Government Code Sections 1090 through 1099, a
Commissioner is generally prohibited from being “financially interested”
in a City contract. For the purpose of Section 1090, a Commissioner
may have a “financial interest” in a contract even if the Commissioner
receives no compensation from the contract (e.g., an uncompensated
officer of certain types of non-profit entities).6 However, there are three
categories of interests under Section 1090 that, depending on the
category: (1) will absolutely preclude the City from entering into the
contract (for any financial interest that is not defined as a “non-interest”
or a “remote interest”); (2) will require a Commissioner to recuse from
participation similar to the requirements under the Political Reform Act,
summarized above (if the interest is defined as a “remote interest”);7 or
(3) may allow a Commissioner to participate (if the interest is defined
as a “non-interest”).8
i. It is very important for a Commissioner to contact the City
Attorney’s Office if there is any possibility that the Commissioner
has any interest in a contract being considered by the City (even
if the interest is as an uncompensated member or officer of a
non-profit entity), since the penalties for a violation of Section
1090 are severe, including criminal and monetary penalties
against the Commissioner, and the contract being rendered void
and unenforceable.
c. Common Law / Appearance of Bias / Due Process. In addition to
the statutory prohibitions against financial conflicts of interest
discussed above, there is also a legal doctrine based on common law
(articulated by the courts), that requires public officials to use their
official positions for the benefit of the public.
i. Generally, a Commissioner is impliedly bound to exercise the
powers conferred on him or her with disinterested zeal, skill and
diligence for the benefit of the public.9 Therefore, a
Commissioner must abstain from participation in a City decision
6 See, for example, California Government Code §§ 1091(b) and 1091.5(a)(8).
7 See, for example, California Government Code § 1091.
8 See, for example, California Government Code § 1091.5.
9 Noble v. Palo Alto (1928) 89 Cal.App. 47, 51.
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if the Commissioner’s personal interests (including the interests
of a personal friend or family member) conflict with the duty that
the Commissioner owes to the broader public good; and the
Commissioner should abstain if there is a perception of any
similar conflict.10
ii. A related legal principle requires decisions by Commissioners
be made with "due process," which requires Commissioners to
be "impartial" on matters that are presented to City Council for a
decision. A Commissioner may maintain impartiality even if the
member voices an opinion regarding a particular matter prior to
the Council taking action - as long as the Commissioner
remains open to hearing competing information and ideas prior
to making a final decision.11 In other words, it is important that a
Commissioner does not indicate that his or her “mind has been
made up” before hearing all sides of an issue during a public
meeting. Similarly, a Commissioner should take care to avoid
becoming personally embroiled in (or advocating for or against)
any particular side of an issue prior to a hearing.
d. Common Law - Incompatibility of Office. Under the doctrine of
"incompatibility of office," a Commissioner is legally precluded from
simultaneously holding two public offices if there is a significant clash
of duties or loyalties between the two offices.12
i. “Public offices” subject to this doctrine include those with a right,
authority, and duty created and conferred by law, with a tenure
that is not transient, occasional, or incidental.13 Examples of the
types of “clashes” that have been found incompatible include:
exercising supervisory, auditory, appointive, or removal power
over the other. Examples of the types of offices that have been
found “incompatible” under this doctrine include the offices of
fire chief of a county fire protection district and a member of the
county board of supervisors, offices of school board member
and City Planning Commission member, and offices of the city
and county planning commission.
ii. Under this common law doctrine, when a public official is found
to have accepted two incompatible public offices, the first office
is automatically vacated. Therefore, it is recommended that a
Commissioner consult with the City Attorney’s Office prior to
accepting a second position with another legislative body.
10 See California Government Code § 1126 regarding incompatible activities.
11 City of Fairfield v. Superior Court (1975) 14 Cal.3d 768, 779.
12 66 Cal.Op.Atty.Gen. 293 (1983).
13 People ex rel. Chapman v. Rapsey (1940) 16 Cal.2d 636, 639-640.
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e. Acceptance of Gifts. As a broad general statement, City officials are
legally prohibited from accepting any gift if: (1) the gift is provided by
any person who is engaged in business with (or who is endeavoring to
secure a contract with) the City; 14 or (2) the gift is provided by a public
utility; or (3) the value of gifts from a single source15 exceeds $500 in a
calendar year.16 City Charter section 103 provides (in relevant part):
“No member of the City Council or other officer or employee
of the City shall knowingly accept any gift, frank, free ticket,
pass, reduced price or reduced rate of service from any
person, firm or corporation operating a public utility or
engaged in business of a public nature with the City or from
any person known to him to have or to be endeavoring to
secure a contract with the City. Any officer or employee
violating any provision of this section shall be guilty of
malfeasance and shall be removed from office.”
i. The City has historically interpreted the term “gift” (as used in
the City Charter) in a manner consistent with the interpretation
of State law (under the Political Reform Act17 and the
implementing regulations of the FPPC).18
ii. Therefore, a gift is not “accepted” and the City Charter is not
violated if the recipient of the gift takes one of the following
actions, as established by the FPPC:19
• The gift is returned, unused, to the donor within 30 days
of receipt.
• The gift is donated, unused, to a charitable organization
(non-profit, tax-exempt 501(c)(3)) within 30 days of
receipt, and the gift is not claimed as a charitable
contribution for tax purposes.
• The gift is donated, unused, to a federal, state, or local
government agency within 30 days of receipt, and the gift
is not claimed as a charitable contribution for tax
purposes.
14 City Charter § 103.
15 FPPC Regulation § 18945.1 defines a “single source” of gifts, which generally includes an
aggregation of gifts from multiple sources if gifts are directed and controlled by a majority of the
same people.
16 California Government Code § 89503; and FPPC Regulation § 18940.2 ((the $500 threshold
will be increased to $520 as of January 1, 2021; and it is updated December 31, 2022, and every
two years thereafter).
17 California Government Code §§ 87100 through 87450.
18 FPPC Regulations §§ 18700 through 18720, and 18940 through 18961.
19 California Government Code § 82028; and FPPC Regulation §§ 18940 through 18961.
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• The recipient, within 30 days of receipt, reimburses the
donor for the value of the gift.
iii. There are additional exceptions to the definition of gift, that
generally relate to payments that are made based on
relationships outside the Commissioner’s status as a public
official. 20 However, many of these definitions turn on very
specific facts, and it is recommended that the City Attorney’s
Office be contacted if a Commissioner has any questions
regarding the propriety and legality of accepting certain
categories of gifts.
2. Financial Disclosure Requirements (Form 700 and 806). Biennially, every
even year, the City Council adopts the City’s “Local Conflict of Interest
Code,”21 which identifies the City employees, officials, and consultants who
are required to prepare and file a Statement of Economic Interests (commonly
referred to as “Form 700”). The Local Conflict of Interest Code also identifies
the substance of what financial interests are required to be reported for each
member, as well as the procedures for filing (including electronic filing).
Commissioners are required to file a Form 700, and Commissioners may be
required to file additional financial disclosure forms (such as Form 806, that
applies to Commissioners who hold compensated positions on other
appointed boards). Helpful information regarding Form 700 filings is also
available on the FPPC website,22 and the City Clerk is available to answer
questions regarding applicable requirements. In general, a Form 700 is
required to be filed: (a) within 30 days of assuming office, (b) annually, prior to
April 1 of each year, and (c) within 30 days after leaving office; and any
violation of the filing requirements, including late filing, is subject to
administrative, criminal, or civil sanctions.23
3. Ethics Training and Education (AB 1234). If a Commissioner receives any
type of compensation, salary, stipend, or reimbursement from the City for any
actual or necessary expenses, the Commissioner is required to receive
biennial (once every two years) training regarding general ethical principles
and ethics laws.24 This is known as “AB 1234” training, based on the 2005
Assembly Bill that established the requirements. The training is available from
various sources, including online training through the websites of the FPPC
and the California Attorney General25 and the Institute for Local
20 The City Attorney has summarized additional information regarding the legal parameters for the
“Limitations on Receiving Gifts” in Administrative Regulation 3.02.002.
21 The Council approved an update to the Local Code on September 15, 2020 (R2020-111).
Consult with the City Clerk for the most recent Local Conflict Code.
22 http://www.fppc.ca.gov/Form700.html
23 FPPC Regulation § 18730.
24 California Government Code §§ 53234, et seq.
25 http://localethics.fppc.ca.gov/login.aspx
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Government.26 Evidence of completion of the training must be filed with the
City Clerk.
4. Aspirational Ethical Guidelines, and Additional Resources. It is an
accepted tenet of our democratic tradition that while City officials (including
Commissioners) wield the power of local government, they must only do so
as stewards of public resources and holders of the public trust. For this
reason, City officials are held to high standards of ethical conduct that go
beyond compliance with the obligations imposed by law (that are summarized
in this overview). When City officials strive to achieve these higher ethical
standards (e.g., trustworthiness, responsibility, respect, loyalty, compassion,
and fairness), actions will be taken that are in the best interests of the City
and the whole community, and that will serve as a positive example to co-
workers, residents, businesses, and visitors.
a. There are extremely helpful supplemental resources available to assist
Commissioners in taking ethical actions that avoid conflicts of interest,
including: (1) the “Ethics and Transparency” webpage of the Institute
for Local Government,27 and (2) the FPPC Advice webpage.28
b. Because conflict of interest laws are voluminous and complex,
Because the application of these conflict of interest regulations can be
a complicated and fact-specific inquiry, and because the penalties for
violations may be severe (including civil penalties, forfeiture of office,
or criminal sanctions), it is strongly recommended that each
Commissioner seek more particular advice from the City Attorney’s
Office as early as possible.
26 http://www.ca-ilg.org/post/ab-1234-self-study
27 http://www.ca-ilg.org/ethics-transparency
28 http://www.fppc.ca.gov/advice.html
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