HomeMy WebLinkAbout2011/04/19 Item 10
MEMORANDUM
TO: Mayor Cox and Councilmembers Aguilar, Bensoussan, Castaneda, and Ramirez
FROM: Glen Googins, City Attorney C~
Jill D.S, Maland, Assistant City Attorn~Y\-.:-Q/'~
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DATE: April 8, 2011
SUBJECT: Placement ofItems on Agenda by City Council
r: INTRODUCTION
This memorandum was prepared in response to Councilmember Castaneda's
request at the March 1 st Council meeting for formal advice on the procedures by which
Councilmembers may place an item of business on the City Council Agenda. A summary
of these procedures is set forth below, followed by a detailed discussion, Since the
original distribution of this memorandum some minor revisions have been made; the
revisions are reflected below in underline/strikeout format.
II. SUMMARY
A. Individuals, Boards, Commissions and Committees
The City Manager, City Clerk and City Attorney may direct placement of items
on a City Council meeting agenda, In addition, City Council-approved boards,
commissions and committees, by an affirmative vote by a majority of the entire
membership, may place an item on the agenda,
B. City Council
An item of business shall also be placed on the agenda if a majority of the City
Council directs it to be done. This can be accomplished in two ways:
L At a City Council Meeting. Since a majority of the Council must act
collectively to place an item on the agenda, the preferred method of doing so would be to
take action at an open meeting, The Council can vote at a City Council meeting to place
an item on the agenda for an upcoming meeting, This method 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 sutncient time to allow a public vote prior to its addition
to an agenda, In these circumstances, the Citv 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.
III. DISCUSSION
We have been asked to detennine 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
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Council Memorandum
April 8, 2011
in open 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 board, 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;Aqt
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.l The purpose of the requirement is to allow the ~ublic to monitor and
participate in the decision-making process of the legislative body. Thus, the Brown Act
prohibition would likely not prevent a majority of the members from discussing a non-
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.s 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.
I Ca!. Gov'! Code 954952.2(b)(l).
2 "The Brown Act, Open Meetings for Local Legislative Bodies," (January 2003) Office of the Attorney
General, Bill Lockyer, Attorney General, p.12.
31d.
4 Ca!. Gov't Code 954956
5216 Sutter Bay Asses. V County afSutter (1997) 58 Ca!.App.4'h 860, 881-2.
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Council Memorandum
April 8, 2011
C. Analysis
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 the limited, allowed communication, or the appearance of such conduct, or a
claim that such conduct took place, we recommend the following process:"
I. 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, bv 5:00 p.m.. at least sixS<Wefl days prior to the
meeting at which the item is requested to be heard (e ". the W ednesdav
before a Tucsdav Council meeting).
2. The City Clerk will send an e-mail to each of the five Cquncilmembers
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 to the City Clerk no later than noon
the day after the Clerk forwards it to them.
4. If at least three members respond that they are agreeable to thc 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 for Council approval.
6 Due to the abbreviated schedule associated with this nroposed procedure. it is unlikely that the
documentation (resolutions, staff reports or other materials) that would normallY' accomp,-lnV an ClQ:,enda
item. would be included in the Thufsdav packet deJiven', as requin:d bv Municipal Code Section
2.04.090( A)( 21.
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