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Home My WebLink About19 AMEND SEC 1306 C.C. 08-06-01AGENDA REPORT MEETING DATE: AUGUST 6, 2001 420-15 NO. 19 08,06-01 TO: FROM: HONO~BLE MAYOR AND MEMBERS OF THE CITY COUNCIL CITY ATTORNEY SUBJECT: ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, AMENDING SECTION 1306 OF THE TUSTIN CITY CODE SUMMARY: The proposed amendment to the Tustin City Code conforms to provisions of state law that enable a local agency to require that minutes be kept of closed sessions. (Government Code Section 54957.2) The amendment eliminates the local requirement to tape record closed sessions. RECOMMENDATION: Introduce the ordinance amending Section 1306 of the Tustin City Code. FISCAL IMPACT: There is no fiscal impact with this action. BACKGROUND' In addition to conforming local requirements to state law, we are eliminating subsection (c). This subsection prohibits the disclosure of matters discussed in a closed session and directs all persons attending the closed session to maintain the confidentiality of such information and. materials in accordance, with the provisions and intent of the Brown Act. This subsection is of questionable validity, if it were to be used to censure or penalize through criminal prosecution, a breach of closed session confidentiality. 76 Cal. Op. Atty. Gen. 289 (December 30, 1993) (City may not make it a misdemeanor for a councilmember to disclose closed session discussion.) While the violation of the attorney-client privilege by one member of the legislative body, or other closed session confidentiality breaches are serious, there is no clear support in existing law for enforcing such breaches by censure or a misdemeanor complaint. Accordingly, it is our opinion that subsection (c) as currently drafted is unenforceable. In summary, the proposed revisions bring the City's Code into conformance with state law and do away with the local provision of requiring the tape recordings of closed sessions. ATTACHMENTS' Government Code Section 54957.2 Existing Section 1306 Ordinance JUL-31-2flfll (TUE) I4:57 P, 003/003 to any .. action i ~en ally ": :gi~lative interest yee with effo~ to 506, § ~; , 3, c. ! 136 operative te Apri. t 1, . · O 136 (/LB. .qoces m.~der e committee atlon of the Iota Newsps~- 4 Dist. 1984) ~3, ~.' or'local nilcncy in uny public offici~ o~' public · ME~GS § 54957.2 Div..2 Note 2 p.ubllc meeLing ac-,ion ~aken I~ it In ~cuflve em~lo~e ~ a pubic ~co~.. 63 Ops.A~.Gen. ~lon to set ~c compc~nti~ of t~ hgspl~l '215, 3-18-80. ndmln~nmr. ~w~. that c~~satlo~ as Minum~ ~f ~cud~ ~n of ~lool boards ~ inmgm[ pn~ ~ t~ hospital ad~n~trator's coace~lin~ dis~dou or ~on on p~sonacl ~ploym~t c~~t, would s~ll bca m~ of mntt~, are not e~lable ~r ~blie ~pcc~on pubi~ reco~ under ~ ~4,8, whi~ pmvld~ but ~y be ~depub~c ~ &e d~~~tion of &at e~ cmplo~ent con,act be~~ a state n maJ~lty o~ die gov~g b~. ~ Ops. At~. G~. 147, 11-1~4. , § 54957.2. Minute book record of dosed sessions; Inspection , (a) The legislative body of a local agency may, by ordinance or resolution, designate a clerk or other officer or employee of-the local agency who shall "then attend each closed session of'the legislative body and keep and enter in a ~' minute book a record o£ topics discussed and decisions made at the meeting. Thc minute book mede pursuant to thcs section Is not a public record subject to 'inspection pursuant to the Catifotnia Public Records Act (Chapter' 3.5 (com. mencinff with Section 6250) of Division 7 o£ Title 1), and shall be kept confidential The minut~ book shall be available only to members o£ the legislative body or, if a violation of this chapter is alleged to have occurred at a. ;~. closed session, to a court o£ general jurisdiction wherein the local agency lies. · . 'Such minute book may. but need not, consist of a recording of thc closed .session, , (b) An elected legislative body of a local agency may"require that 'each legislative body all or a majority of whose' member~ arc appointed by or under the authority o1~ the elected legislative body keep a minute book as prescribed 'under subdivision (a). ,. (Added by' Stats, t976, c. 1363., p. 6207, § 1. Amended by Stats. 1980, c. 1264, p. 4343, ' § 23; Stats. 19$l, c. 968. § 313 Municipal Corpor,,tious ~100. WESTI~W Topic No. 268. CJi. Municipal Corporations § 409. ' . Notes of Decisions .CI~ se~ion~ :Z · l~owl~fe ol'.reem'dln~ : Th~ ~ct~n wh~ au~od~s ~c ~cordifig of ~ '~cudvc sc~lon o~ ~e lef~sOve · e ~l agcn~ und~ s~fi~ ~u~n~s, ~ not p~ide ~ thc court . . body o~ a 1~1 esen~ a d~~ vlo~E P~C. ~ 632, w~ch pro~ibi~ co~ing ot co~d~ ~mm~~o~, board of' dr- :' ,it aL ItS neXt executive session without the knowledge of all persons p~scnr. 62 Ops.Atty. Gcn. 292, 6--7-79. 2. Cloud se. lone Minutr~ containing deliberations of claim sea- dement comanlttee of count7 in settling claim of county ~nil inmate, whose throat wns slashcd, · ,~cre not exempt from disclosure .under the Brown Act (§ 54950 et seq.) since committee held secret meeting in clenr violation o~ the Brown Act. Register Div. of Pre,dom New~pa- perg, inc. v, Orange County (App. 4 Disc 1984) 20S Cal.Rptr. 92, 158 Cal.App.]d 89~. 171 JUL-31-2001 lB:51 95~, _._ P. iUL-3I-2OOl (TUE) P,002/001 rusrm cod CITY COUNCIL ~._-_ ........ ~! _ ~t,, , 1304 (d) Exper~e accountz Of the ~n~ual City i~ud~et shall not be adjusted to include a nonbudgeted City Coundl expense unless appro~ed by the City CounciL.. · (Ord, No. '745; Or& NO, 1096, ~ec..1, 7-~-0-9~) ' , 1305 COMMISSIONE~ WHO ARE CAND~A~S FOR COUNCIL. · a Non-Elig~o/lit7 of Candidate to Ser~e ss Commissioner No person ehall be appointed,to serve or to continue to serve as a member ofany co_ mmi~Si0n af the City on whose behalf there has been filed nora/nat/on papers for the office ~f City doo~-~ ~na.the ~lection therefor is .pending. ' . · . · 'b .Resignation af Commissione~ coundl Candidate ' : ' ' , .. Any member of any commission ofthe City on whose behalf there has been filed nomination papers for the o~ce of City Councilman shall immedi,'ately .resign from his position as commissioner. In the event such resignation is not fried by said commisdoner, his appointment shall be tarmlnnted as of the date of 611nff of nomina~on paper's'..' (Ord. ,No. 6~0) , , 1506 MINt~ES OF'CLOSED SESSIONS OF ~ COUNCIL (a) ~he city Attorney ia directed/o atiend each closed session of the City (c) (Or& No. and keep into a minute book a wr/m record of topics dlscus~ed decisions made at the and to cause a tape recording to be made of closed session. The minut~ be msintained as a permane, nt record minute book especially established for purpose. The minu~ and ~pe shall be sealed and permanentl~ by the Cit~ Attorney and ~ available only to members oF · the City Council ac ,usnr dosed seed, of the City Council or, if a violation ofthe.Ralph M, Brown to have occurred at a closed Om,geo, The written minutes inspection pursuant to California of Divislon 7 of ~itle 1) and 54950 fl~rough 54961, is alleged to a of general juri. 'sdiction of the County of shall not be public records subject to Records Act (Chapter 3.5, Sect/on 6250 et ~eq. A copy af the Wri~n __ closed 'shall bi Pr~en~ed to the City Co'iicil at.the next., following .session' f.or of .t~e Council as. wrl. tten or.as corr--'by' --- --the, ' "' · ', '. ,.. . ..... ; .. . . , No person a ~losed session of the City is authorized to disclose the conten~s~ discussed or inf~~tion r~ceived in a ~ed session o~ set forth in the or tape recordings of Such meetings all such persons are m,!ntain the cohfi~n6_~lity of Such' infomation in' actor- the provision~ and ~~t of the Brown Act. REV. 7'-00 J'UL.-31-2001 16' 51 A~3-4 96Z P. 02 · ...,;;.- · 1 ORDINANCE NO. 1243 Internet 4 5 6 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, AMENDING SECTION 1306 OF THE TUSTIN CITY CODE The City Council of the City of Tustin hereby ordains as follows: SECTION 1. entirety to read as follows: Section 1306 of the Tustin City Code is hereby amended in its 1306 MINUTES OF CLOSED SESSIONS OF THE COUNCIL Pursuant to Government Code Section 54957.2, the City Attorney is directed to attend each closed session of the City Council and keep and enter into a minute book a record of topics discussed and decisions made at the meeting. SECTION 2. Tape recordings previously made and retained under prior Section 1306 shall be erased or destroyed. SECTION 3. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Tustin hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of ~the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be deClared invalid or unconstitutional. PASSED AND ADOPTED, at a regular meeting of the City Council for the City of Tustin on this ..... day of .... ,2001. TRACY WILES WORLEY, MAYOR j~A'MEL,~ STOKER, City Clerk