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CC MINS 20111219 ADJ MINUTES RANCHO PALOS VERDES CITY COUNCIL ADJOURNED REGULAR MEETING/COUNCIL WORKSHOP DECEMBER 19, 2011 The meeting was called to order at 6:10 P.M. by Mayor Misetich at City Hall Community Room, 30940 Hawthorne Boulevard. City Council roll call was answered as follows: PRESENT: Brooks, Campbell, Duhovic, Knight, and Mayor Misetich ABSENT: None Also present were: Carolyn Lehr, City Manager; Carol Lynch, City Attorney; Eric Mausser, Human Resources Manager; and, Carla Morreale, City Clerk. Also present was: Roy Clarke, Attorney, Richards, Watson and Gershon. FLAG SALUTE: The Flag Salute was led by Mayor Pro Tem Campbell. APPROVAL OF AGENDA: Councilwoman Brooks moved, seconded by Councilman Knight, to approve the agenda. Without objection, Mayor Misetich so ordered. PUBLIC COMMENTS: (For Audience Comments for Items not on the Agenda) None. REGULAR NEW BUSINESS: City Council Workshop on Labor Relations Issues City Clerk Morreale reported that late correspondence was distributed prior to the meeting and there were no requests to speak regarding this item. Mayor Misetich introduced Attorney Roy Clarke to present the City Council Workshop regarding Labor Relations issues. Roy Clarke, Attorney, Richards, Watson and Gershon, provided a detailed oral report and PowerPoint presentation regarding Labor Relations. He provided an overview of City Council Minutes December 19, 2011 Page 1 of 15 the following topics to be included in his presentation: 1) California Public Sector Labor Law; 2) Representation and Recognition; 3) The Collective Bargaining Process; 4) The Good Faith Requirement for Collective Bargaining; 5) Impasse and Unilateral Implementation; 6) Unfair Labor Practices; and, 7) Conclusions. During the presentation, Council Members asked questions of Mr. Clarke for clarification of particular topics. Mr. Clarke provided a history of the California Public Sector Labor Law, noting that California's public sector labor relations are covered by the Meyers-Milias-Brown Act (MMBA) and became effective in January 1, 1969 pursuant to Government Code Section 3500-3511. He stated that the MMBA came under the administration of Public Employment Relations Board (PERB) in 2001. He explained the relationship and differences between private and public sector labor law, and noted that the National Labor Relations Act (NLRA), which is administered by the National Labor Relations Board (NLRB), regulates labor relations in the private sector, but noted local government is exempt from the NLRA and NLRB. He noted that the statutes that were established in California were formed by the experience of labor relations with the Federal Government that date back to the 1930's. He explained that there are parallel provisions under the statutes and the NLRA, and noted that decisions under the NLRA are referenced to give insight into the manner in which different labor issues should be handled. He stated that in the 1970's there was an unsuccessful attempt to establish a comprehensive labor statute in California, which resulted in California embarking on a fragmented system of labor relations where there are a number of different statutes that deal with different segments of the public sector. Mr. Clarke provided detailed background information regarding the PERB, which is an independent State agency created in 1975 with jurisdiction to administer and enforce the MMBA and several other acts. He explained the employees that are covered under the MMBA and explained the public employees' basic rights to form, join, participate in and be represented by employee organizations, as well as the right to refuse to join or participate in the employee organizations and other employee rights. He stated that under the MMBA, supervisors, professionals, confidential, and management employees all have the right to organize. He explained that there was no legal difference between the following: union, employee organization, employee association, association, bargaining representative, guild, or professional association. He defined negotiations as any of the following: meet and confer, bargain, negotiate, confer, or collective bargaining, noting there was no distinction between the terms. He explained that a contract is the following: Memorandum of Understanding (MOU), collective bargaining agreement, or labor contract. Mr. Clarke explained that under the MMBA, an employee has the right to form, join, participate in and be represented by an employee organization. He noted they also have the right to refuse to join in the employee organization. He further explained that City Council Minutes December 19, 2011 Page 2 of 15 an employee may not be subject to punitive action, denied a promotion, or threatened with such treatment as an elected, appointed or recognized representative of a bargaining unit. He discussed the different types of organizational security, including Agency Shop, Union Shop or Closed Shop, noting that both Union and Closed Shops were not legal in California in the public sector. He explained that the City has received a request for an Agency Shop, which requires bargaining unit employees to join an exclusively recognized employee organization or pay a service fee related to the representation services that are provided. He noted that if for religious reasons a unit member cannot support a public sector union, they can opt out but are still required to pay the fee which would be donated to a charity. Mr. Clarke explained how a union is formed and the requirement for an employer to recognize the union and recognition of the union as the exclusive representative if a union has the majority of the support of the employees, as is the case in Rancho Palos Verdes. He stated that for the City of Rancho Palos Verdes the unit was formed with over 90 percent support of the non-management full-time employees. City Attorney Lynch reported that the Council adopted the Resolution recognizing the Rancho Palos Verdes Employee Association on October 18, 2011. Mr. Clarke described a bargaining unit as a group of employees with a clear and identifiable community of interest that the employer determines is appropriate for collective bargaining. He stated that for Rancho Palos Verdes, the Employee Association requested a bargaining unit of non-management full-time employees. He stated that a bargaining unit is an organizational subdivision of the City used for purposes of labor relations and the union is a separate organization of the employees. Mr. Clarke explained some of the typical triggers for a duty to bargain, including a request to negotiate an initial Memorandum of Understanding; request to negotiate renewal of an MOU when nearing the expiration date of a contract; the implementation or revision of a new policy or rule; and a change in a past practice. He noted that both the public agency and employee organization have a mutual obligation to bargain in good faith upon the request of the other and to endeavor to reach an agreement on matters within the scope of representation. He added that the duty to bargain requires that both the employer and labor refrain from making a unilateral change in negotiable topics without giving the other side notice and the opportunity to engage in negotiations. He stated that both parties have a duty to bargain and either reach an agreement or if an impasse occurs, to exhaust all impasse resolution procedures. Mr. Clark described the typical collective bargaining process and the meet and confer procedures; requirements of management to give proper notice of change and an adequate opportunity to bargain; and the responsibility of the employee organization to City Council Minutes December 19, 2011 Page 3 of 15 request negotiations if they want to negotiate the change. Mr. Clarke discussed what would qualify as adequate and proper notification of a change and timelines for negotiations. Mr. Clarke stated that the mandatory bargaining subjects include the following: wages, hours, and other terms and conditions of employment. He noted that in contrast, bargaining does not include the merits, necessity, or organization of any service or activity provided by law or executive order. He noted many things fall under the first category of mandatory bargaining subjects which are the issues which are important to employees in the context of compensation and relationship to the employer. He explained that the second half deals with those matters that are fundamental to the management of the organization and providing services to the community. He provided examples of mandatory bargaining subjects as the following: wages, including retroactivity; wages for voluntary assignments after hours; overtime; merit pay and parking fees that significantly affect employees; hours, including work schedules; reassignment of overtime, personal leave, maximum hours and shifts; benefits including group insurance benefits and retirement benefits; the level of benefits and division of contributions between employer and employee; discipline procedures or changes in established discipline policies; vacancies and promotions involving non-supervisory positions and the promotional process; staffing to the extent of workload and safety; contracting-out bargaining unit work out of the bargaining unit where motivated by economics; safety; and drug testing. Mr. Clarke stated that the bargaining process ensures more conversation and sharing of ideas. He explained that essentially the goal of the MMBA is to provide stable employer-employee relations and to encourage dialogues between management and labor in order to support stable relations and avoid conflicts that may otherwise arise. He stated that City management is typically involved in the negotiation and implementation of the agreement and in terms of the bargaining unit taking care of the day-to-day administration of labor relations with the employees. He stated that the Council provides direction for negotiations, sets policy, typically is involved throughout the process of negotiations, and determines at the end of the process whether the MOU is going to be approved or not. Mr. Clarke stated that there is a status quo so that whatever exists at the present time is the status quo while negotiations occur. He continued that what occurs in negotiations depends on the parameters that the Council sets. Mr. Clarke reported that the court has decided the following are outside of the scope of representation: the decision to layoff employees; staffing levels, except to the extent they impact workload and safety; certain employee rights secured by statutory or constitutional law, such as "Skelly" rights or duplicate pay for military leave; subjects that have only a trivial effect on wages, hours and other terms and conditions of employment. He discussed decision bargaining vs. impact bargaining as that situation where the decision involving an employer's action falls within management rights, there City Council Minutes December 19, 2011 Page 4 of 15 may be a duty to meet and confer over the impacts of the decision on matters within the scope of representation, noting that layoffs are the best example of this distinction. He stated that negotiations would be required regarding the effects of a decision such as layoffs, the procedure for layoffs, advanced notice of layoffs, order of layoffs, bumping rights, recall rights, safety of the remaining employees, workload of existing employees, severance pay, use of seniority, etc. Mr. Clarke stated that the City currently has a layoff procedure which continues to apply, but noted that aspects that are not addressed by the procedure would need to be negotiated. Mr. Clarke provided an overview of the typical collective bargaining process. He explained that frequently the management team and union initially meet to discuss ground rules; meeting schedules and locations; size of bargaining teams; order of issues to be discussed; whether the parties will sign off on individual tentative agreements or proceed with bargaining as a package; procedures for information requests; limitations on general communications outside of bargaining; information on the ratification or approval process either side will follow; agreed deadlines for proposals or for negotiations; and confirmation that either side has sufficient authority to proceed with negotiations. Mr. Clarke stated that the opening stage of the collective bargaining process concentrates on discussion of interests, provision of information; exchange of proposals; clarifications, questions, refinement and explanations; and Closed Sessions with City Council for direction on proposals and review of negotiating positions. He explained that the middle stage of the negotiating process is continued discussion of interests and options; counter-proposals; tentative agreement on proposals; discussion of package proposals; and Closed Sessions with City Council for direction on proposals and review of negotiating positions. He clarified that the City Council typically is not involved in the negotiations. He stated that the closing stage of the process includes a refinement of interests and options; a tentative agreement is reached; there is a finalization of tentative agreement terms; and joint preparation of a written MOU to be presented to the Council for its determination. Mr. Clarke discussed the Good Faith Requirement, which is a subjective attitude that requires a genuine desire to reach agreement, noting that the parties are expected to meet personally to exchange ideas, proposals, and communications for a reasonable period of time in an effort to reach an agreement at the end of the process. He stated that the Good Faith Requirement is central to the process and violations of the duty to negotiate in good faith are usually based on the totality of the conduct and may include failure to exchange reasonable proposals, refusing to explain reasons for bargaining positions; the use of delay tactics; a rude and patronizing attitude; not giving representatives at the bargaining table sufficient authority to reach agreement; withholding relevant information; or refusing to put the agreement into writing. City Council Minutes December 19, 2011 Page 5 of 15 Mr. Clarke discussed allowable communication between the employer and members of the bargaining unit regarding matters being negotiated. Mr. Clarke clarified that the status quo is defined as those items to the extent that they deal with matters within the scope of representation such as wages, hours and other terms and conditions of employment. Council and staff discussion noted that status quo could include the Employee Personnel Rules, Employee Handbook, Salary Schedule, and patterns and past practices. Mr. Clarke clarified that there has been the request for recognition, which was approved and a pending request for Agency Shop, but no request has been received to negotiate an MOU or terms and conditions of employment. Mr. Clarke outlined actions that have a potential to frustrate the collective bargaining process which are automatic violations, such as unilateral action or change or changes to establish past practices within the mandatory scope of representation. He explained that an example of unilateral change would be if the City Manager decided that all employees would work an hour longer for the same pay, without the Union being provided notice and the opportunity to negotiate the change. Discussion ensued regarding the requirement that before the approval and implementation of a resolution or decisions on matters concerning the mandatory scope of representation of the employees there would need to be a meet and confer process in good faith and the opportunity for negotiations. Mr. Clarke stated that even though there is not an MOU with the Union, individual topics that arise concerning the mandatory scope of representation of the employees will need to be negotiated. He explained that regarding established past practices, factors will have to be examined to evaluate if there is a procedure that management was aware of that meets all of the standards. He continued that there could be numerous procedures or actions used over time regarding transfers, for example, with no single practice that can be identified, noting that in this case there would not be an established past practice, but instead a series of different responses. Discussion ensued regarding Council direction to the employees regarding the negotiation of a particular policy and the scope of representation of the employees. Mr. Clarke stated that typically Council direction involving consideration of a policy change within the scope of representation would be done in Closed Session with the bargaining team. He explained that if there are proposed changes, negotiations are used to try to work out the particulars of the proposal. He continued that if, at the end of that process, an agreement cannot be reached the parties are at an impasse. City Council Minutes December 19, 2011 Page 6 of 15 Mr. Clarke explained that when you reach an impasse, the duty to bargain changes into the duty to engage in the impasse procedures in good faith, and to the extent that the local agency has its own impasse procedures, it has to follow those procedures. He added that the City of Rancho Palos Verdes does not have impasse procedures. He further explained that the parties could mutually agree to go to mediation, where a third party comes in to facilitate an agreement through discussions. He explained that new legislation goes into effect after January 1, 2012, requiring a fact finding requirement, if requested by the union. He stated that upon the exhaustion of impasse procedures, a public agency may unilaterally implement its last, best and final offer. He noted that the Council has to unilaterally implement the entire last, best and final offer, and cannot pick and choose portions of it for implementation. He continued that the union cannot be given a deal that was less favorable than that offered during negotiations, because that would be considered punishing them for having exercised their rights. He noted that the agency must have fulfilled its obligation to meet and confer in good faith; the parties must genuinely be at impasse; and, all applicable impasse procedures in good faith must have been exhausted. Mr. Clarke stated that the unilateral implementation goes into place, setting terms and conditions of employment, but noted that it is not a contract or MOU. He added that the union does not lose its right to meet and confer each year, but that at most, unilateral implementation suspends the duty to meet and confer until the next fiscal year. He added that if there are changed circumstances, or one party changes its position in a material way, this may revive the obligation to meet and confer, with the unilateral implementation in place, as this becomes the status quo until negotiations determine a different outcome. Discussion ensued regarding if changes could be implemented or back pay granted retroactively, if after the unilateral implementation there was challenge. Mr. Clarke stated that generally that was a remedy PERB will give. Mr. Clarke discussed the typical path to unilateral implementation to be the following: 1) The City engages in good faith negotiations; 2) Negotiations over matters within the scope of representation reach a point where the differences are so long term and significant that future meetings would be futile; 3) Either party declares impasse; 4) Frequently, the parties have an impasse meeting, but at Rancho Palos Verdes that would not be a requirement, to review their positions on matters in dispute and consider possible impasse procedures; and, 5) The parties may mutually agree to mediation or other impasse procedures, such as fact finding. Mr. Clarke stated that with the passage of AB 646, the union may file a request for fact finding with PERB, noting that fact finding was similar to non-binding arbitration. He outlined the procedure under PERB, where each side would designate one fact finding City Council Minutes December 19, 2011 Page 7of15 panel member; and, PERB provides a list of seven neutrals available to serve as Chair, if the parties cannot select a Chair. He explained that this would essentially be a three member non-binding arbitration process with the Chair deciding the matter. He stated that the panel will schedule and conduct informal hearings that would include witnesses, testimony, evidence, and the need for experts. He noted that this would not be a public hearing for the fact finding, but a public hearing would come later on in the process. He stated if the process results in an agreement, the process ends, but if the matter does not settle sooner, the panel will issue findings of fact and will recommend terms of settlement to the parties. He stated that this report would be presented to the City and union and the parties have 10 days to review and negotiate over the matter. He noted that at the end of the 10 day period, the City is required to make the fact finding report public. He noted that the City must hold a public hearing regarding the impasse, where both parties make a presentation, and the City Council may implement the City's last, best and final offer, or leave things as they currently exist. Mr. Clarke addressed the ability of the union to go on strikes and work stoppages. He stated that strikes by public employees are not illegal in California except where the strike will pose a substantial and imminent threat to the public health or safety as in the case of firefighters or police officers. He noted that the right to strike is considered on a case-by-case basis for other positions such as nurses, water and sewer employees, animal control, etc. Mr. Clarke provided an overview of unfair labor practices charges, which are generally adjudicated by the PERB. He defined unfair labor practices charges as an allegation that one party or the other violated the MMBA. He listed the violations as including the following: 1) discrimination, intimidation or reprisals because to the exercise of protected rights; 2) automatic violations such as unilateral change, refusal to provide information, insistence to impasse on permissive subjects, and refusal to execute an agreement; 3) totality of the circumstances; and, 4) refusal to allow reasonable release time. Discussion ensued regarding a hypothetical situation and the setting of precedents. Mr. Clarke provided an overview of the typical process regarding unfair labor practice charges. He stated that after a complaint is filed with PERB, there is an initial review and investigation, followed by a decision from the Board agent whether there is a basic case. He continued that if there is a basic case, PERB will issue a complaint; the employer will answer the complaint; and, a settlement conference will be held. He noted that many charges are often resolved in the settlement conference, but if that is not the case, there is a hearing held by an administrative law judge who issues a decision. He explained that either party or both parties can file exceptions to portions of the decision to PERB and PERB will make the final decision. He noted that most decisions by PERB can be appealed to the Court of Appeal, but for the most part, PERB's decisions are final, unless there is a clear error in law. City Council Minutes December 19, 2011 Page 8 of 15 Mr. Clarke stated that PERB has broad discretion to take action and issue orders as necessary to effectuate the purposes and policies of the statues it administers including the following: 1) issue a cease and desist order; 2) require restoration of the status quo; 3) require back pay where appropriate; and, 4) require reinstatement where appropriate. He reported that in 2011, the Legislature prohibited PERB from awarding damages for an illegal strike. He noted that as a result there is no recourse, and that unfortunately this legislation takes away some of the balance. He continued that the statute of limitations period for filing an unfair labor practice charge is generally six months. He shared the following PowerPoint slide of the most common unfair labor practices for Management as the following: 1) Unlawful unilateral change in wages, hours and working conditions; 2) Discrimination against employees because of protected activity; 3) Interference with protected rights of employees, including the right to be represented by a union; 4) Direct dealing; 5) Denial of employee organization right to represent employees, access work locations, reasonable means of communications, receive information and release time; and 6) Bad faith bargaining. Mr. Clarke concluded that there are forty years of precedent firmly established in California law for the fact that employees have the right to: form unions; negotiate over the terms and conditions of employment; be free of discrimination based on protected union activity. He stated that it is unlawful under the MMBA to take unilateral action changing a mandatory subject of bargaining without giving notice to an affected employee organization and an opportunity to meet and confer over the change. He continued that once negotiations are entered into, there needs to be preparation and the allowance for sufficient time to: 1) gather and analyze information during the fact finding process; 2) allow sufficient time for the negotiations, which can be a fairly time consuming process; 3) allow time for the City Council and bargaining team to meet to set the expectations and parameters for negotiations; and, 4) allow enough time to go through the entire process of negotiations and possible impasse procedures. In response to Council's questions, Mr. Clarke summarized that the City at this point has been through the Recognition stage; the City and Union are currently working on the dues issue and Agency Shop agreement; and typically the next step would be some sort of negotiations, noting that the entire discussion regarding negotiations would apply. He stated that at this point it has not been determined if there would be negotiations over a single topic, a request to negotiate an MOU, or request to accept status quo. He noted that at this point, both sides could agree allow things to continue on as they currently exist, with a status quo could continue until that no longer is the situation. He continued that the formalities are in place for the Union and the establishment of the Agency Shop does not need to occur before negotiations pertaining to a particular topic are begun at the request of either party. He added that the establishment of the limits of the bargaining team's authority would be something to discuss in Closed Session. City Council Minutes December 19, 2011 Page 9 of 15 Mr. Clarke explained that legal counsel had worked with Human Resources Manager Mausser regarding the determination of which employees were Management and Non- Management, based on the employees' particular position, supervision, management, and what made sense for a bargaining unit. He explained that supervisory responsibility or job title does not disqualify someone from being in a rank and file union. He noted that is frequently seen in municipal government. Mr. Clarke clarified that the negotiating team for the City is comprised of Human Resources Manager Mausser and himself. He added that to the extent that there may be additional members needed on the bargaining team for the City as an employer, there is the option to include an operating manager if operating issues arise, or a finance manager if financial issues arise. Councilman Knight moved, seconded by Mayor Pro Tem Campbell, to receive and file. Without objection, Mayor Misetich so ordered. RECESS AND RECONVENE: Mayor Pro Tem Misetich called a brief recess from 8:06 P.M. to 8:18 P.M. Presentation by the City Attorney on the Ralph M. Brown Act, Conflicts of Interest, and Public Records City Clerk Morreale reported that there were no requests to speak regarding this item. City Attorney Lynch reported that she would focus the discussion this evening on the highlights of the Ralph M. Brown Act and provide examples regarding some of the provisions and the expansion of those provisions by the Courts, as the Courts tend to lean towards the direction of more public disclosure and transparency. She stated that a legislative body includes the City Council, as well as any commission or committee that is created by the City Council. She added that if the Council appoints a commission or committee, that body is bound and governed by the Brown Act and its provisions. She explained that if the commission or committee has not been appointed by the Council to deal with a particular issue, it is not governed by the Brown Act. She added that if a Council Member wishes to talk to three or four personal friends about important City business issues, that particular situation is not subject to the provisions of the Brown Act. She further explained that all legislative bodies are subject to the 72 hour noticing requirements for its public meetings. Thus, except as expressly stated in the Act, the body may not act on or discuss any item that does not appear on the posted agenda. City Attorney Lynch stated that the Brown Act does not apply to an Ad Hoc Committee, which is composed solely of less than a quorum of the membership of the particular legislative body, for a specified body of work having a defined end date. She provided an example of this type of an Ad Hoc committee of two Council Members appointed to City Council Minutes December 19, 2011 Page 10 of 15 consider fact finding on Public Works projects. She contrasted that example to a Standing Committee consisting of two Council Members and two Planning Commission Members to work on the specific task of reviewing the City's Zoning guidelines and General Plan for consistency. City Attorney Lynch explained that as soon as there is the intermixing of the membership of two legislative bodies, the committee must follow all of the provisions of the Brown Act, even though it is a limited jurisdiction committee. She clarified that if two Council Members are discussing an issue with two Planning Commissioners and there was no particular Ad Hoc Committee established to deal with the subject matter, it technically would not trigger the Brown Act requirements. She explained that because of the judicial decisions that always lean in the favor of public openness and disclosure, if two Council Members wanted to meet with two Planning Commissioners to make some report back to either or both parties, she suggested the meeting be conducted subject to the Brown Act as it would be safer to avoid the argument that the Council had knowledge of the meeting. City Attorney Lynch stated that there is an exception to the Brown Act requirements when there is a social event where two Council Members are chatting with three Planning Commissioners, but she cautioned that the group must be careful to avoid the appearance that someone is trying to work around the Brown Act. She added that another exception to the Brown Act requirements is the situation when Council Members are attending a conference. She explained that all Council Members can attend a conference that is open to the public, but cautioned that those meetings cannot be used as opportunities to discuss City business. She added that the full Council can attend holiday parties and other social events as long as no City business is discussed at that function. She continued that each Council Member is entitled to meet with any developer, resident, or potential applicant, to discuss issues. She stated, from a Legal Counsel perspective and as a best practice, Council Members should use caution with respect to meeting with litigants or potential litigants and added that if a Council Member is meeting with, for example, a representative of the Trump Organization, and there is an attempt to discuss the lawsuit, she suggested the Council Member clearly state that they cannot engage in any discussion regarding the matter, as such discussions and decisions are for the Council to consider as a whole. City Attorney Lynch stated that a unilateral communication from a member of the public or developer is not a problem, and a one-way communication of information from staff is not a problem and is allowable. She explained that it is always a good idea to lay out the ground rules in advance when meeting with a developer or other person, stating that you are happy to listen to what they have to say but point out that if they have met with other Council Members there should be no disclosure of the content of those discussions or meetings. Discussion ensued among Council Members, City Attorney Lynch and staff regarding the appropriate disclosure of earlier meetings with a developer, resident, or applicant during the discussion of the item at a Council Meeting. City Attorney Lynch noted that City Council Minutes December 19, 2011 Page 11 of 15 if during a site visit, a concern or information is shared with a Council Member that has not been presented in the staff report or materials presented at the public meeting, the Council Member should share that information during the public meeting, so that the public clearly understands any concerns or issues raised at the site. She added that handling the issues in this manner affords the public the opportunity to address or refute any issue raised, noting that this ensures due process has been afforded to all present at the meeting. City Attorney Lynch reported that she would be addressing the Council in Closed Session soon to update the Council Members regarding the City's existing litigation as well as potential litigation, so that all Council Members are fully informed as to the status of these cases. In response to a question, City Attorney Lynch explained that when Council Members call her to discuss City business, that conversation time is billable in one-tenth of an hour (6 minute) increments, but when Council Members call to just chat about a matter, she does not charge that to the City. In response to a question, City Attorney Lynch explained the difference between a Standing Subcommittee, also referred to as a Standing Committee, and an Ad Hoc Subcommittee, also referred to as an Ad Hoc Committee. She stated that a Standing Committee has a longer indefinite scope of jurisdiction, or definite meeting dates, noting that the City has had Standing Committees dealing with the landslide issues and the Trump Property regarding their development. She stated that an Ad Hoc Committee is one where the Council has designated a Council Subcommittee to review or study a topic and report back to Council within a short time frame. She clarified that these subcommittees can either be Ad Hoc Subcommittees or Standing Subcommittees. She explained that the Pension Subcommittee was an Ad Hoc Subcommittee that dissolved after the completion of its work. Discussion ensued among Council Members, staff and City Attorney Lynch regarding the need for regular Subcommittee Reports. City Attorney Lynch noted that a committee can change from an Ad Hoc to Standing Committee because of the length of time to resolve a particular matter, and that everyone should be sensitive to this issue. City Clerk Morreale added that the Mayor's Appointments to subcommittees was an item to be considered at the January 17, 2012 Council meeting. City Attorney Lynch stated that the Brown Act (Act) defines a meeting as any congregation of a majority of the members of a legislative body to hear, discuss, deliberate, or take action on any item that is within the subject matter of the jurisdiction of that body. She clarified that this does not allow a majority of the Council to sit and listen to a factual presentation by a developer. She explained that would be a violation of the Brown Act because the courts have expanded the Act to mean that the collective acquisition and exchange of facts or preliminary discussions are also meetings within the parameters of the Act. She provided details regarding the Frazer v. Dixon Unified School District court case where board members of a school district viewed a video tape City Council Minutes December 19, 2011 Page 12 of 15 of a process that they were interested in implementing with their teachers and explained that this was a violation of the Brown Act due to the manner in which the definition was expanded. She reiterated that anytime there are three Council Members together discussing City business, it should be at a duly noticed meeting. In response to a question, City Attorney Lynch stated that at a community meeting, three Council Members are only allowed to attend if the meetings are noticed to the general public and are open public meetings. She stated that if the meeting is only noticed to the membership of a community homeowners' association, there should be no more than two Council Members present at that meeting, noting that there was a court case directly on this point as well. She added that the City was lucky when at a recent Council of Homeowners Association (CHOA) meeting, a majority of the Council showed up and an allegation was later made that this was a Brown Act violation, but she explained that fortunately CHOA published their meetings in the newspaper, and the public is welcome to attend; therefore, there was no violation. In response to a question regarding a position as a delegate or alternate on another board such as the South Bay Cities Council of Governments, City Attorney Lynch explained that when a Council Member is appointed to be a member of another board on behalf of the City, the delegate is authorized under that board to make decisions and the delegate operates under the quorum of that board. She explained that in the case of the Vector Control Board, there was legislation necessary to allow Council Members to sit on the Vector Board. She stated that in order to speak as a member of the public at another City or entity, a Council Member can, if authorized by the Council speak on its behalf, and conversely the Council Member has the right to speak as an interested party, and not as a representative of the Council. Discussion ensued regarding interactions between members of boards among the Peninsula cities. City Attorney Lynch stated that City staff works very hard to insure that there are not inadvertent Brown Act violations. She stated that one-way communication from staff, a developer, residents, even a Council Member to the entire Council is not a Brown Act violation. She noted that the problem is that if a one-way communication is sent out to other Council Members, and a response is received from more than one Council Member, this is a Brown Act violation. She suggested that communication from a Council Member to a staff member and staffs responses regarding an item on the Council agenda should be distributed to all of the Council and the public as part of Late Correspondence to avoid any possible violation. City Attorney Lynch stated that there was a court case entitled Wolfe v. City of Fremont where a City Manager had held serial meetings with individual Council Members to poll the different Council Members to get a collective answer, without sharing any of the responses to any of the other Council Members, to a question regarding a new policy City Council Minutes December 19, 2011 Page 13 of 15 for the police department. She added that the new policy was implemented before it was ever presented at a public meeting. She explained that staff was dismissed from the case since they were not part of the legislative body subject to the Brown Act, but the Council Members were held responsible. City Attorney Lynch cautioned the Council Members regarding the pitfalls of email correspondence and the dangers of conferring with other Council Members to reach a consensus regarding issues, as this would be a violation of the Brown Act. She discussed the possible remedies for Brown Act violations, including civil suits that can be filed by an individual against the City and against the Council Member(s) to seek to invalidate action taken by the Council. She noted that as a prerequisite to filing the lawsuit, the individual would have to give notice to the City first, so that the Council would have the opportunity to rescind an action. She stated that there can also be criminal penalties, since it is a misdemeanor to violate the Brown Act, and typically the District Attorney's Office issues a letter with a Cease and Desist Order. She added that the District Attorney's Office will pursue those cities that show a persistent and intentional disregard for the law. She noted that the City of Rancho Palos Verdes has always had a very good track record of always looking to achieve compliance and being transparent. In response to a question regarding inadvertent serial emails, City Attorney Lynch stated that if a Council Member notices that a quorum of the Council has been copied on an email, an email response needs to be sent right back to the sender notifying them of the inadvertent Brown Act violation. She stressed the importance of reviewing who the email has been sent to and who has been copied on it, to avoid any possible violation. Discussion ensued among Council Members and City Attorney Lynch regarding email retention and the two major exceptions to a read and delete practice with email that the Council Members receive in their capacity as Council Members. She explained that a Council Member must retain their emails pertaining to any pending claim, pending litigation, or Public Records Act request. She noted that staff or the City Attorney's Office would pass a notification of this type along to the Council Members immediately upon receipt of such a notice. She reiterated that if there is no legal hold on emails, Council Members can read and delete, but that if something comes in subsequently and the emails are still in the Council's possession, the emails must be produced to the City for review. City Attorney Lynch explained that the fact that a person sent an email to a Council Member through the Council Member's City email address implies that it was sent to them as part of City business, versus the person who sends an email to the Council Member's personal email address. She stated that this issue is a completely unlitigated area of law at the current time. She explained that the City of Tracy had a very interesting court case where emails were sent to the personal email of a Council Member from a developer, and a newspaper sued to get the emails. She stated that the Trial Court ruled in favor of the Councilperson, since no City equipment or supplies were City Council Minutes December 19, 2011 Page 14 of 15 used and on the fact that one City Councilperson acting alone is not the Council as a whole. She added that it went up to the Court of Appeal, but the case was dismissed on a procedural matter. She noted that the cc@rpv.com emails are not retained in a central repository anywhere at the City. In response to a request for clarification, City Attorney Lynch stated that any items discussed in Closed Session are not to be discussed with any member of the public. She stated that she is obligated by law to report any discloseable decision made by Council during the Closed Session Report which is held at the end of the Regular Session of the City Council Meeting. City Attorney Lynch encouraged Council Members to call her with any questions they may have, and in particular regarding any conflict issues or financial interests since those are very fact specific. City Attorney Lynch reported that the Legislative Meetings to be held in Sacramento in early January, where there is a quorum of the Council to be present, will be noticed since the Council Members will be discussing City business with the different state legislators. Councilman Knight moved, seconded by Councilwoman Brooks, to receive and file. Without objection, Mayor Misetich so ordered. ADJOURNMENT: At 9:10 p.m., Mayor Misetich adjourned the meeting. Ma or Attest: City Clerk W:\City Council Minutes\2011\20111219 CC MINS.doc City Council Minutes December 19, 2011 Page 15 of 15