Open and transparent?

The Alameda public-at-large is now – finally – getting the opportunity to weigh in on the issues about police reform and racial equity that have occupied the attention of a group of ad hoc citizens’ committees formed last fall.

The City posted the draft recommendations made by each of the five police-reform subcommittees on January 21, four months after City Manager Eric Levitt began the process by appointing a four-person “steering committee” that in turn selected the members of five subcommittees, each of which was assigned a specific subject area.

During that four-month period, the steering committee met once or twice a week, and each of the subcommittees met at least weekly.  No agenda was published, nor was any public notice given, for any of these meetings.  Moreover, as far as we know (steering committee members Al Mance and Christine Chilcott did not respond to our emails seeking confirmation), none of them was open to the public, only to the steering committee/subcommittee members themselves.  (The public was, however, invited to attend via Zoom a “speaker series” in November at which committee members submitted questions to Alameda Police Department managers).

Since the recommendations were posted, two Zoom meetings have been held – one on January 22, the other on February 13 – to present them to the general public, which could use the “Chat” function to submit comments and questions that Public Information Officer Sarah Henry read aloud.  The police-reform committees also made presentations to the Transportation Commission and the Social Services Human Relations Board.  In addition, the City has posted a “community survey” on its website.  Ms. Henry told us that, as of Sunday, the City had received 839 responses.

All of which the Merry-Go-Round regards as commendable.  But we still can’t help asking:  Why didn’t the steering committee or the five subcommittees hold open meetings to solicit input from the public-at-large before they made their recommendations?

Based on our reading of the Council minutes, we think we know the answer.  But before we go there, we thought it would be instructive to find out how other ad hoc citizens’ committees had functioned in the past.  Such committees have been a regular feature of Alameda policy-making for many years, and we looked at a few of them that addressed hot-button or high-profile issues.  (Our thanks to City Clerk Lara Weisiger and Ms. Henry for searching their records to provide us with a comprehensive list.)

Here’s what we found:

The Fiscal Sustainability Committee was created in the midst of the recession that began in 2008.  Acting on a referral by Councilman Frank Matarrese, Council voted in June 2008 to establish a 12-member body chaired by City Treasurer Kevin Kennedy whose mission was to review the City budget and make recommendations regarding “best practices.”  Between the appointment of its members and the presentation of its report to Council in May 2009, the committee usually met twice a month – a total of 15 or more meetings.

For every FSC meeting, a written agenda was prepared, notice was published, and all of the meetings were open to the public.  This was consistent not only with the requirements of the state’s “open meeting” law – the Brown Act – but also with the views expressed by Mr. Kennedy and several Council members.  As the Treasurer recently explained to us, “I thought it would be far more productive and transparent if we didn’t just huddle as a group behind closed doors and emerge nine months later with some serious, impactful information.”

(Mr. Kennedy was quick to add that, by these remarks, he did not intend any criticism of the process used by any other ad hoc committee, including the police-reform committees.  The same is true for the others who responded to our questions about the practice of committees on which they served.)

The Sunshine Task Force originated with a referral by Councilwoman Lena Tam in April 2009 proposing that a task force be formed to write a “sunshine ordinance” for Alameda that would supplement the requirements of the Brown Act.  In response, Council decided in November 2009 to create a six-member Sunshine Task Force, with one member appointed by each Council member plus a representative from the League of Women Voters.

During Council discussions, Ms. Tam made it clear that the Sunshine Task Force should “definitely” make its meetings open to the public and that it should give prior notice of those meetings “so that the public can be encouraged to attend.”  And in fact the Sunshine Task Force did hold noticed public meetings – approximately eight to 10 of them, Task Force member Tom Charron recalled.

The Mayor’s Economic Development Advisory Panel was set up by Council in April 2016 as the successor to the Economic Development Commission, which had been dissolved in 2003.  The panel has nine members, all of whom are described as “high-level business executives,” appointed by the mayor and confirmed by Council for a two-year term.  It meets at least once a year, and the meetings are agendized, noticed, and open to the public in accordance with the Brown Act.

More recently, after staff raised the issue at an EDAP meeting, City Manager Levitt appointed a 10-member citizens’ task force to develop a plan to bolster economic recovery in Alameda after the COVID-19 pandemic ends.  The Economic Recovery Task Force has met 12 times via Zoom since it was formed.  All of the meetings are agendized, noticed, and open to the public.

What the foregoing examples have in common is that all of the ad hoc citizens’ committees – the FSC, the Sunshine Task Force, the EDAP, and the ERTF – adhered to Brown Act agenda and notice requirements, and their meetings were open to the public-at-large.

We found two outliers to this pattern among the committees we reviewed.

One was the Pension and OPEB Task Force appointed by City Manager John Russo in 2011 to review, and make recommendations about, the City’s unfunded liabilities for pensions and other post-employment benefits.  It had 15 members, including the police chief, the fire chief, and the heads of the two public-safety unions, and it met eight times between October 2011 and June 2012.  None of these meetings was agendized, noticed, or open to the public.

The other was the group formed to prepare an economic development strategic plan.  Originally, this job was given to the EDAP, working with staff and a consultant hired by the City.  But when two Councilmembers objected that the process was too “staff-driven,” staff recruited a 16 (later, 21) -member citizens’ committee to take it over.  This committee held seven meetings between August 2017 and March 2018.  None appears to have been agendized, noticed or open to the public, but a community survey was made available online; it generated responses from 1,557 people.

Update (February 17):  Although the City’s online meetings database did not contain any agendas for the citizens’ committee formed to prepare the EDSP, we received an email today from one of its members, Tony Kuttner, who said that the meetings in fact were agendized and open to the public.

Finally, a quick word about the involvement of citizens’ committees with rent control.

In July 2014, at Council’s direction, staff presented a proposal for a seven-member task force composed of representatives of both landlords and tenants to investigate the state of the rental market in Alameda.  But, at the suggestion of Councilman Stewart Chen, D.C., Council opted instead to authorize local mediator Jeff Cambra to run a “community discussion forum” at which the respective “stakeholders” would talk about ways to improve the existing Rent Review Advisory Commission procedure.

Mr. Cambra presided over three public meetings and presented a list of six “discussion points” to Council.  The stakeholders then reviewed and commented on the ensuing draft amendments to the RRAC ordinances.

Now let’s return to the question we asked at the outset:  Why didn’t the police-reform steering committee or its five subcommittees hold open meetings to solicit input from the public-at-large before they made their recommendations?

The short answer is:  Because three Council members – Mayor Marilyn Ezzy Ashcraft, Councilwoman Malia Vella, and Councilman Jim Oddie – decided that the committees shouldn’t be subject to an open-meeting mandate, and City staff, with the blessing (no, we didn’t say, connivance) of City Attorney Yibin Shen, found a way to dispense with it.

At its June 29 meeting, Council gave Ms. Ashcraft and Ms. Vella the job of formulating a “community-led process” for addressing police reform.  With staff’s assistance, they devised the procedure outlined above:  the city manager would appoint a “steering committee,” which in turn would select the members of five subject-matter subcommittees.

The staff report for the July 21 meeting did not reveal why Ms. Ashcraft and Ms. Vella had come up with this particular structure – but Vice Mayor John Knox White let the cat out of the bag.  It appeared designed, he suggested, to allow the police-reform committees to circumvent the Brown Act requirements for preparing agendas, publishing notice, and holding open meetings.

Not surprisingly for someone who had served on the Sunshine Task Force, that didn’t sit well with Mr. Knox White.  “I’m not clear,” he stated, “how the Brown Act is the thing we need to be trying to get around.”

In response, both of the Council members who had come up with the plan defended the advantages of not imposing an open-meeting mandate.

Unidentified members of the “Black community,” Ms. Ashcraft said, had told her that “they would like some time out of the public side to just bat around some issues . . . – you know, sensitive topics – that . . . maybe until they’ve batted them around a little weren’t ready for public consumption.”

Ms. Vella started down the same path – “There may be members of our community who would like to have certain aspects of conversations be held in a smaller listening setting,” she said – but then she ramped up the rhetoric.  “Do we want this to be a heavily bureaucratic process that might make it uncomfortable for certain individuals – Black, indigenous people of color – who have felt like they might not be ready to have certain conversations publicly?” she asked.  “Is there a way for us to kind of look at this and create a place that they would be safe to participate or feel safe to participate, while also having the ability to have these publicly agendized very transparent meetings?”

(Later, Mr. Oddie added his own typically hyperbolic twist.  Requiring Black people to “give their name and show their face” at a public event can be “overwhelming,” he said.)

For his part, Mr. Shen provided legal cover.  If Council itself appointed the steering committee and the subcommittees, the Brown Act would apply, he seemed to agree.  But if the City Manager appointed the steering committee, and the steering committee then chose the subcommittee members, it wouldn’t.  So if Council wanted to avoid the agenda, notice, and open-meeting requirements of the Brown Act, it should endorse the latter route.

(We tried to get Mr. Shen to elaborate on his legal analysis.  Initially, he declined on the basis that the issue was the topic of a complaint pending before the Open Government Commission.  When pressed, he was willing to go this far:  “I can confirm we have taken the position that a committee appointed/established by a staff member, entirely on his/her own initiative, is not a Brown Act body.  On the other hand, a committee established by a legislative body through formal action would be a Brown Act body, unless an exception applies.”)  (Emphasis supplied.)

Mr. Knox White wasn’t buying it.  “I would have expected that this would be the kind of thing that we want very well-publicized and noticed,” he said.  The procedures employed by the police-reform committees should be “very public and transparent,” with the goal of “bring[ing] the entire community into this conversation.”  By contrast, “setting it up where it’s unclear when they’re meeting and who’s meeting, and where the committee members themselves are meeting as a majority, possibly without notice, because they’re just having conversations and developing answers, I think is kind of problematic for me.”

But the Council majority remained unpersuaded.

Mayor Ashcraft set up and shot down a straw man.  “I do understand, Vice Mayor, the Brown Act is a very important principle,” she said.  “[But] I don’t believe that any of these subcommittees are going to be doing backroom deals that will somehow be to the detriment of the city.”

Councilwoman Vella relied – as she often does – on what others outside Alameda were doing.  Neither the “Truth and Reconciliation” commissions (presumably referring to the ones in South Africa and Northern Ireland) nor the police-reform committees in Charleston and Colorado Springs had worked under the kind of “constraints” the Brown Act required, she noted.  Instead, they exalted “listening” and “conversation.”

Then came Mr. Oddie, who was even more dismissive – and ludicrously so – of the position taken by Mr. Knox White.  “To me, the Brown Act is, you know . . . it’s passed by a bunch of white people,” he said.  “Why are we going to force that on our communities of color?”

Council didn’t take a vote on the procedural issue, but Mr. Levitt undoubtedly had heard all he needed to hear, and he proceeded to implement the Ashcraft/Vella proposal and refrained from requiring agendas, notices, or open meetings.

Now, we are tempted to join the legal debate over the applicability of the Brown Act to ad hoc citizens’ committees.  (We’ve read the OGC complaint, and it makes some solid arguments.)  But that would be interesting only to lawyers.  By the same token, we could challenge – based on our own observations of public meetings – the proposition that the “BIPOC community” really is as reticent as the Council majority appears to think it is.  But that would be presumptuous.

So we’ll end with this point:  Unless a majority of Council intended all along to direct the police-reform committees to listen exclusively to those who they assumed would support their call for “transformational” change, wouldn’t it have been wiser to have brought the public-at-large into the process before, not after, the subcommittees made their recommendations?  To us, that would have enhanced the legitimacy, and, ultimately, the acceptability, of the outcome.  It’s kind of like what Joe Biden means when he extols the virtues of “bipartisan” legislation.

And if anyone accuses us of echoing Mr. Knox White in speaking up for the Brown Act – well, we always agree with him whenever he’s right.


Fiscal Sustainability Committee: 2008-07-01 staff report re FSC members

Sunshine Task Force: 2010-02-16 staff report re Sunshine Task Force

Mayor’s Economic Development Advisory Panel: 2016-04-05 staff report re EDAP

Economic Recovery Task Force: 2020-05-14 staff report to EDAP re economic recovery task force

“Community forum” on rent: 2014-09-16 staff report re rent task force; 2015-03-17 staff report

Pension & OPEB Task Force: 2012-10-30 staff memo re pension task force report

Economic Development Strategic Plan: 2018-07-24 staff report re EDSP

About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
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13 Responses to Open and transparent?

  1. Trish Herrera Spencer says:

    Some might also want to email and comment on 6-C on this Tuesday’s City Council agenda. I added clarifications in parentheses.
    “The subcommittee of Mayor Ezzy Ashcraft and Councilmember Knox White reviewed and discussed ways to streamline meetings,”
    1) under Oral Communications, speakers would have two minutes to comment (currently 3 minutes);
    2)  under the Consent Calendar:
    a.  members of the public would comment once on the entire Consent Calendar and not be able to withdraw items for discussion (currently no limit);
    b.  up to eleven speakers would have two minutes for comments and twelve or more speakers would have one minute (currently reduced time 2 minutes);
    c.  Councilmembers would not pull items simply to record a non-affirmative vote and would have up to five minutes to speak on each item pulled for discussion (currently time per item pulled);
    3)  under Regular Items and Council Referrals, 12 or more speakers would have one minute to speak (currently reduced time 2 minutes); and
    4)  all presentations would be limited to 10 minutes (currently unlimited).”
    Historically, these proposals go first to Open Government Commission – not this time.

  2. Paul Foreman says:

    Great article! I am the complainant on the pending matter before the OGC that raises the same issue as applied to the Jackson Park Renaming Committee. I agree with Mr. Shen”s statement to you “that a committee appointed/established by a staff member, entirely on his/her own initiative, is not a Brown Act body. On the other hand, a committee established by a legislative body through formal action would be a Brown Act body, unless an exception applies.”

    On the police matter, the June 29 meeting is interesting, but you really need to to look at the June 17 meeting minutes starting at page 13 and continuing to page 17. Ms. Vella makes a long 4 part motion starting at page 13 and extending to page 17, part 4 of which states, ” 4) oversight and accountability; questioned whether the oversight should be short-term, use an ad-hoc committee, and who serves on the oversight and accountability capacity, ”

    On page 15 Ms. Vella clarifies point 4 of her motion, ” forming community police use of force policies; stated there are five different areas Council could have subcommittees for with agendized meetings for full Council participation: 1) unbundling or reimagining policing, 2) racism,
    3) policing policy review, 4) oversight and accountability, and 5) a review of laws that
    criminalize survival.”

    On page 17, the minutes state, “Mayor Ezzy Ashcraft inquired whether the June 29th meeting will discuss how to compose the different advisory committees, to which Councilmember Vella responded in the affirmative. Mayor Ezzy Ashcraft expressed support for the committees having diversity.” Council adopted the Vella motion unanimously.

    To suggest that the City Manager created the police committees, “entirely on his own initiative” is ludicrous. The minutes of the June 29 Council meeting demonstrate that Council was desperately trying to cover its tracks left by the June 17 meeting which clearly show that that Council initiated the creation of the committees by formal action, the Vella motion of June 17. Only Mr. Knox-White refused to play the game. It is significant that he served on the Task Force that drafted our Sunshine Ordinance and had every reason to voice his concerns. I commend him for speaking out.

  3. Really says:

    A ludicrous move by the City Attorney of doubtful legal merit to circumvent the Brown Act.

    The effect of City Council Zoom meetings has been to discourage and inhibit public comment. And the effect of the “secret” complaints is to further hide public complaint. This gives free reign to politicians to do what they want.

    Using the same logic, perhaps we’ll have secret testimony soon in court.

  4. Tony Kuttner says:

    I was one of the citizens on the Economic Development Strategic Plan that met in 2017-18, and I can confirm that those meeting were agendized and open to the public. I can’t confirm that they were publicized, but I assume they were because members of the public showed up at every meeting.

    • Thank you, Mr. Kuttner.
      There were no agendas for the EDSP task force in the City’s online meetings database (just agendas for EDAP) for 2017 and 2018, but, based on your comment, it does not appear that the task force was in fact an “outlier.” I will update the piece accordingly.

  5. BIPOC Community Voices Matter says:

    These ad hoc committees and subcommittees have the greatest representation of the BIPOC community Alameda has seen in a long time, perhaps ever. It is tough to get members of under-represented groups to come out and engage in unpaid government work, especially if they fear retaliation and hostility. Their voices are very important, but instead of applauding this, it’s strange that we are instead fixated on a “process” that has historically favored other members of our city who are more likely to rubber-stamp the status quo than to effect real change to address marginalized voices. We have no problem with members of the city staff working together to draft recommendations for a government body to review and vote on, but suddenly it’s a problem if it’s the unpaid members of the public. The Brown Act is very clear on this, that ad hoc committees can be formed for specific purposes if they’re only making recommendations. Other cities in California do ad hoc committees all the time, so I am not sure what makes Alameda any special.

    Bob Sullwold, I would love to hear how you can help promote diversity and different voices on city matters, rather than this brow-beating fixation on process. The optics of a white man attempting to undermine a platform that seeks to center BIPOC voices are… not great. And referencing BIPOC community with dismissive quotes… not great either.

  6. Anonymous says:

    “It is tough to get members of under-represented groups to come out and engage in unpaid government work, especially if they fear retaliation and hostility.” No. Absolutely not. These Alamedans are grown adults who can stand on their own two feet. They can speak their minds in front of others whenever. Please, please, please do not justify the police committees insufficient transparency on a strange theory that adult Alamedans from historically under-represented communities need to be protected and treated like children. That POV is downright scary, frankly racist, and you should be ashamed of promoting it.

    • BIPOC Community Voices Matter says:

      Really? You’re calling it “frankly racist”? I am a POC myself, and I get it. You don’t get to tone-police me on this, it is a very valid point that was also voiced by members of these subcommittees. I attended Encinal High School during the Navy days and have heard all the stories about infractions between minority members and the police, so I understand this level of mistrust. This was further magnified by how the Mali Watkins incident was bungled. The fact that you think this “POV” is not valid speaks volumes about your own privilege. Have some empathy for others, that’s the only way we will get out of this situation.

  7. Jeff Cambra says:

    Hi Robert.

    While the following example of a community led forum does not involve the city council, it is relevant as another example of a citizen led community discussion that was conducted under the provisions of the Brown Act.

    As the convenor of the Historic Alameda High School – Next Steps community meetings, I insisted and was whole heartedly supported by both the Superintendent of AUSD and the Trustees that the meetings were to be considered Open Meetings as defined by the Brown Act. The meetings were noticed and video recorded for the public to access. I believed that it was important to have every individual and group, no matter how informal the group was, to fully participate in the community discussion. I think we started with nine or ten identified stakeholder groups that I reached out to and invited to participate as a recognized stakeholder group, which meant that you got to sit “at the table.” At the first meeting, a rep from the Alameda Citizens Task Force showed up and asked if they could also be considered a stakeholder group to which I replied, “Of Course.”

    While I am a strong proponent of all meetings designed to provide community guidance to a legislative body, I concur with BIPOC Community Voices Matter, that public forums are inconvenient and intimidating to the vast majority of residents BIPOC and otherwise. The very nature of the forum excludes participation.

    To Anonymous, I can confirm that while potential speakers may be adults, there are numerous reasons why a “grown adult who can stand on their own two feet” would not show up to a public meeting and contribute. Try being a working single parent with an 8 year old and attending a 6 PM meeting on a week night. While I completely agree with and support the position that BIPOC Community Voices Matter has clearly stated, there are ways to overcome these barriers to participation and still comply with the Open Meetings laws. It has to do with how one runs the meeting.

    When I set up the community meetings for the Future Uses of Alameda High discussion, I wanted the broadest range of perspectives on the future uses of the historic Alameda High School. I was aware that there are many many voices in the community that do not have the time and possibly the resources to contribute during an in person evening meeting with 50-100 people in the audience. I also was keenly aware that many people are uncomfortable in expressing a point of view for fear of ridicule. Consequently, I allowed and encouraged people to submit comments anonymously by any means necessary, and I did not stop there. I also assigned a person to present those comments at the public meeting and then facilitated the group discussion that required every stakeholder to directly address the comments.

    I distinctly recall the most impactful comment that the stakeholder groups had to address was an anonymous comment that expressed the opinion that the entire old historic high school should be blown up and leveled because any money that the school board spent on restoring the building would be prioritizing preservation above education.

    In conclusion, it is possible to have open public meetings with full participation by every member of the community that wants to have a voice, but you must to have the desire to do so. It just isn’t something that government does well.

    Just as an aside, I see that you post under Anonymous. Seems to prove the point BIPOC was trying to make. Just sayin’

  8. Doug Biggs says:

    An Ad Hoc Committee established by Mayor Spencer and the City Council to interview candidates and advise City Council on selection of a City Manager held meetings that were not agendized or publicized. Various ad hoc committees established by some City Boards at various times, including when Spencer was Mayor, including Alamedans Together Against Hate(ATAH), and the sister city work group (both established by the SSHRB) did not hold publicized meetings.

    • Jeff Cambra says:

      There seems to be a patchwork of applications of an ad hoc committee verses a “public” meeting. There needs to be a single set of regulations that provide clear guidelines so that everyone knows the rules and that these rules are applied fairly and consistently in all applicable situations, regardless of the subject matter. Additionally, if the meetings are public, there needs to be several pathways to receive anonymous comments and that the comments are addressed directly by those on the committee to assure that all points of view are heard and considered.

      Maybe the Open Government Commission could set up an ad hoc committee to study under what conditions a Brown Act compliant meeting should be convened. OH wait . . . would those ad hoc meetings need to be agendized??

      • Doug Biggs says:

        There have been different applications of ad hoc committees, but they consistently have not been required to be brown act compliant. There have been cases where they chose to be, but it wasn’t required, and the important distinction is that the committee made the choice, not another body.

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