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HomeMy WebLinkAboutMINUTES - 05172011 - SD.3RECOMMENDATION(S): REFER to the Internal Operations Committee a proposal to amend the Better Government Ordinance to require the online posting of agenda materials and communications to a quorum of the Board of Supervisors or its policy bodies, and to establish procedures for publicly reporting final litigation settlement agreements, as recommended by the County Administrator and County Counsel. FISCAL IMPACT: Fiscal impacts are unknown. BACKGROUND: In 1995, the Board of Supervisors adopted the Better Government Ordinance. The intent of the Better Government Ordinance was to promote transparency and open government. On February 10, 2011, the County Counsel advised the Board that she planned to propose an amendment to the Better Government Ordinance specifying how final settlements in pending litigation matters will be reported to the public. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 05/17/2011 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS AYE:John Gioia, District I Supervisor Gayle B. Uilkema, District II Supervisor Mary N. Piepho, District III Supervisor Karen Mitchoff, District IV Supervisor Federal D. Glover, District V Supervisor Contact: Sharon L. Anderson (925) 335-1800 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: May 17, 2011 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: June McHuen, Deputy cc: David Twa, County Administrator, Sharon L. Anderson, County Counsel, Sharon Hymes-Offord, Risk Manager, All Policy Bodies (via Clerk of Board), All County Department Heads (via CAO), Timothy Ewell, Senior Deputy County Administrator SD. 3 To:Board of Supervisors From:David Twa, County Administrator Date:May 17, 2011 Contra Costa County Subject:Proposed Amendment of Better Government Ordinance Regarding Litigation Settlement Reports and Online Posting of Documents It was thereafter suggested that, as part of the same BACKGROUND: (CONT'D) amendment, the Better Government Ordinance also be amended to require: (1) that all County-staffed policy bodies post their agenda packets online; (2) that communications to a quorum of the Board of Supervisors be posted on the Contra Costa County internet web site; and (3) that communications to a quorum of other County-staffed policy bodies be posted on their internet web sites and linked to the County web site. I. Public Body Agenda Packets and Communications - Proposed Amendment to Ordinance Code Sections 25-2.206 and 25-4.402 The Better Government Ordinance was adopted in 1995 when use of the internet was very limited. Sixteen years later, the internet has become a universal source of information and has changed the way that we communicate and do business. It has been suggested that the internet could be used to provide greater public access to official communications to the Board of Supervisors and other policy bodies of the County. In response to this suggestion, the County Administrator’s Office has explored whether amendments could be made to the Better Government Ordinance to increase online access to public information. A. Posting Agenda Packets. One way to increase online access to policy body activities would be to amend Section 25-2.206 of the Better Government Ordinance to require that all County-staffed policy bodies post their agenda packets online, as the Board of Supervisors already does. This would be in addition to other legally required agenda distribution procedures, including the requirement that agendas be physically posted as specified in Government Code section 54954.2(a). Attachment 3 to this Board Order includes a proposed amendment to Section 25-2.206 of the County’s Better Government Ordinance that would require County-staffed policy bodies to post their agenda packets online. In a similar vein, on February 14, 2011, state legislation (AB 392) was introduced to require that all public agencies who maintain web sites post their agendas and related writings online at least 72 hours before the meeting. B. Online Posting of Communications to Board of Supervisors and Policy Bodies. Currently, Ordinance Code section 25-4.402 requires every policy body supported by County staff to maintain a copy of all communications sent to or received from a quorum of the body in a public review file for a period of thirty days. A “policy body” is defined by Ordinance Code section 25-2.202(a) to mean the Board of Supervisors, or any permanent or temporary board, committee or commission under the authority of the Board. Attachment 1 to this Board Order is a list of 74 policy bodies that the County Administrator’s Office has identified to be in existence as of April 12, 2011. Attachment 2 is a copy of Ordinance Code section 25-4.402 in its current form. Attachment 3 includes a sample amendment to Section 25-4.402 that has been developed for discussion purposes. The draft amendment would require that County staff send to the Clerk of the Board copies of any communications that staff sends to a quorum of the Board of Supervisors. The Clerk of the Board would be required to post on the Contra Costa County web site, for a period of at least 120 days, any staff or other communications the Clerk receives that are addressed to a quorum of the Board. The amendment requires that communications to a quorum of other County-staffed policy bodies be posted on their internet web sites for the same time period, or on the Contra Costa County web site if the policy body does not have its own web site. In addition, the draft amendment requires that the County web site list the name, address and telephone number of the custodian of records for all policy bodies and a link to their web site. The online posting of communications was discussed with County Department Heads on March 25, 2011. At that meeting, many Department Heads voiced strong objection to a requirement that communications sent or copied to a quorum of the Board of Supervisors or a policy body be posted online. The staff time and expense involved in complying with this requirement was considered to be unacceptably high, particularly in these tight budget times. It was pointed out that the new procedure would require the online posting of letters containing language that was profane, defamatory, or harassing to named employees or others, thus empowering the person engaging in the defamation or harassment, injuring the reputation of the employee or other named subject of the letter, and subjecting the County to potential liability. Once objectionable material was posted on the internet, the County would have little or no ability to retrieve it or control its use. Outside search engines frequently navigate the internet, collecting data for a multitude of uses. It was pointed out that the County should carefully consider the extent to which it wants to contribute to the dissemination and collection of personal or misleading information. Concern was expressed that providing a new, unrestricted public forum to anyone who wanted to have false, inflammatory material published on the internet could have unintended consequences and lead to unforseen liability. After the Department Heads meeting, it was determined that the proposal to begin online posting of communications to the Board or its policy bodies should be referred to the Internal Operations Committee for further discussion before an ordinance amendment was presented to the Board for adoption so that the benefits and burdens of opening up a new public forum on the County’s web site, without administrators or rules of conduct, can be thoroughly explored. II. Procedures to Report Final Settlement of Litigation - Proposed Amendment to Section 25-2.406(b)(3) The California Constitution and state statutes require that meetings of public bodies must be open to the public. But, in limited circumstances, the law allows the governing body of a public agency to meet in closed session. Whether to settle a claim or lawsuit is a permissible subject to discuss in closed session. When a settlement agreement has been approved and signed by the other party before closed session, the Board of Supervisors may decide to take final action to approve that agreement in closed session. In that event, the substance of the action taken and the Board’s vote is publicly announced that same day in open session. However, some litigation settlements are contingent; i.e., a settlement agreement has not been approved in advance by the other party. In that situation, the Board may approve settlement parameters in closed session and direct staff to negotiate and execute a final written document once agreement is reached. Attachment 3 includes a proposed amendment to Ordinance Code section 25-2.406 (b)(3) specifying that reports of contingent settlements in pending litigation matters will be placed on the Board’s public agenda as soon those settlements become final, and at least once a month when there are final settlements to report. The Office of the County Counsel has already taken steps to implement the procedures contemplated by the proposed amendment. The Board’s agenda of February 15, 2011, included a public report of litigation settlements in cases handled by County Counsel that became final during the period of October 1, 2010 - December 31, 2010. Five settlements were reported. The March 1, 2011, agenda contained a public report of settlement agreements that became final during the period of January 1, 2011 - February 28, 2011. One settlement was reported. The Office of the County Counsel will continue to make these reports on a monthly basis when there are settlements to report. No litigation settlements became final during the period of March 1-31, 2011, so in April, no report was made. In May, any litigation settlements that become final during the period of April 1- 30, 2011, will be publicly reported, and so on. The Risk Management Division will continue to report on the Board’s open session agenda, closed session approvals of contingent settlements of workers compensation cases and litigation handled by outside counsel retained through Risk Management, after those settlements become final. CONSEQUENCE OF NEGATIVE ACTION: If the Better Government Ordinance is not amended to provide for greater online access to agenda packets and/or communications to the Board of Supervisors and its policy bodies, this information will be less available than it would be under the amended procedure. Public reports of litigation settlements will continue to be made in the manner described above even if the ordinance is not amended. However, amending the ordinance will provide additional assurance that final settlements are reported to the public expeditiously and on a regular basis. Attachments 1. List of Policy Bodies 2. Current Version of Ordinance Code section 25-4.402 3. Redline Version of Ordinance CHILDREN'S IMPACT STATEMENT: None. ATTACHMENTS Attachment 1 - List of Policy Bodies Attachment 1 - List of Policy Bodies Attachment 2 - Current Version of Ordinance Code section 25-4.402 Attachment 3 - Redline Version of Ordinance