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HomeMy WebLinkAbout2011/03/22 Item 12Item 12 `~~~~ 3/22/2011 ~r '„~. ~' ~~~ CHULAVISTA Office of the City Attorney MEMORANDUM TO: Mayor Cox and Councilmembers Aguilar, Bensoussan, Castaneda, and Ramirez VIA: Donna Norris, City Clerk /(~~~ FROM: Glen Googins, City Attorney ~~~ c~~~ Jill D.S. Maland, Assistant City Attorne~/ r' !i DATE: March 17, 2011 SUBJECT: REPORT REGARDING PROCESS FOR CITY COUNCIL ADDING ITEMS TO THE AGENDA I. INTRODUCTION This memorandum was prepared in response to Councilmember Castaneda's request at the March ls` Council meeting for formal advice on the procedures by which Councilmembers may place an item of business on the City Council Agenda. II. SUMMARY The City Council can place items on the City Council agenda by majority vote.. This can be accomplished in one of two ways: 1. At a City Council Meeting The Council can vote at a City Council meeting to place an item on the agenda for an upcoming meeting. This is the preferred method because it ensures that the action complies with the Brown Act, and avoids any appearance of impropriety. 2. Outside of a City Council Meeting. Some items of business may be of such an urgent nature that there is not sufficient time to allow a public vote prior to its addition to an agenda. In these circumstances, the City Council members may communicate outside an open meeting for the limited purpose of determining whether a majority of the members agree to add an item to the agenda. No substantive discussions may take place. A recommended procedure for this is set forth in Section IILC, below. III. DISCUSSION We have been asked to determine if there is a procedure that may allow a majority of the Councilmembers to place an item on the agenda, without first having to vote on it in open 276 Fourth Avenue, Chula Vista, CA 91910 ~ www.dlfnTaListaca.gov ~ (619) 691-5037 ~ tax (619) 409-5823 Council Memorandum March 9, 2011 Item 12 3/22/2011 session. As discussed below, an open session vote is the preferred method of placing an item on the agenda, but we have identified an alternative method for urgent matters. A. Municipal Code Requirements Chula Vista Municipal Code Section 2.04.090.C.2. addresses the manner by which items of business may be placed on a City Council Agenda. It provides as Follows: "Items of business shall be placed on the agenda at the direction of the city manager; city attorney; city clerk; a majority of the council; or a council- approved boazd, commission or committee, upon an affirmative vote of a majority of the entire membership of said body directing same." Pursuant to Section 2.04.090.C.2., a majority of the council can place an item on the agenda. Accordingly, if a Councilmember wants to add an item to an agenda, he or she may do so if at least three of the Councilmembers vote in favor of it. One method which we have historically employed to do this is for the Councilmember to place the request on the agenda as a topic of discussion under "Council Comments." It is then discussed among the Councilmembers at the Council meeting. The members then vote as to whether it should be placed on a subsequent agenda for Council action. If three or more members vote in favor of doing so, the item is placed on a subsequent agenda. B. The Brown Act The Brown Act prohibits a majority of the Councilmembers from discussing, outside of an open meeting, any item of business that is within its subject matter jurisdiction.i The purpose of the requirement is to allow the public to monitor and participate in the decision-making process of the legislative body.2 Thus, the Brown Act prohibition would likely not prevent a majority of the members from discussing anon-substantive matter such as agendizing an item.3 In addition, Section 54956 of the Act contains a specific provision allowing a majority of members to call a special meeting: "A special meeting may be called at any time by the presiding officer of the legislative body of a local agency, or by a majority of the members of the legislative body.... "4 In a case challenging a meeting at which the a majority of members met to set a special meeting agenda, the court found that the Brown Act was not violated because the members' discussion was limited to consideration of what would be placed on the agenda.5 Section 54956 is substantially similar to the language in CVMC Section 2.04.090.C.2. Thus, we find the decisions and opinions interpreting Section 54956 are instructive in interpreting the Municipal Code section. ~ Cal. Gov't Code §54952.2(b)(1). a "The Brown Act, Open Meetings for Local Legislative Bodies," (January 2003) Office of the Attorney General, Bill Lockyer, Attorney Genera], p.12. ' Id Cal. Gov't Code §54956 s 2l6 Sutter Bay Asscs. V County of Sutter (1997) 58 Cal.App.4"' 860, 881-2. City of~~ula Vista Council Memorandum March 9, 2011 C. Conclusion and Recommendation Item 12 3/22/2011 In light of the above, it is our opinion that a majority of the Councilmembers can communicate with each other, outside of an open meeting, for the sole purpose of deciding whether to place an item on the agenda. Great care needs to be taken, however, to avoid deliberation on the substance of the item. In order to avoid conduct that goes beyond what is allowed, the appearance of such conduct, or a claim that such conduct took place, the City Clerk and the City Attorney recommend the following process: 1. The Councilmember desiring to add the item should submit the request, with an item title and description and statement explaining the item's urgency, to the City Clerk, by 5:00 p.m., at least seven days prior to the meeting at which the item is requested to be heard. 2. The City Clerk will send an e-mail to each of the five Councilmembers notifying them of the request and the item title, description and statement of urgency, the same day the request is received. 3. The Councilmembers shall respond directly to the City Clerk no later than 5:00 p.m. the day after the Clerk forwards it to them. 4. If at least three members respond that they are agreeable to the item being agendized, the City Clerk will add it to the agenda. If a Councilmember does not respond, it shall be deemed a vote in opposition by that Councilmember. 5. The City Clerk will then notify the City Attorney and City Manager that the item has been added, so that, time permitting, they may assist with the preparation of any requisite resolutions, staff reports, or other materials. If the above approach is acceptable to the Council, we will prepare a formal City Council policy and bring it back for Council approval. Citv of~~uT.~ Vista