Government and Administration Committee Procedures for Board of Supervisors' Meetings Reason for the Report

Codes The foundations of the written procedures by which the BOS must conduct its legislative and administrative business are set forth in the Ralph M. Brown Act (California Government Code §54950 et seq.) and in Chapters 2.03 and 2.06 of the County's Ordinance Code. 89

Meetings As required by Section 54953(a) of the Brown Act and pursuant to Section 2.03.100 of the County's Ordinance Code, "[a]ll meetings of the board of supervisors shall be open and public, and all persons shall be permitted to attend any meeting of the board, except as otherwise specifically provided" in the Brown Act and the Ordinance Code. The exceptions set forth in Chapter 2.03 of the Ordinance Code are as follows: Pursuant to Section 2.03.110, the BOS "may hold closed sessions during regular or a. special meetings to consider matters as allowed by applicable state law." b. Pursuant to Section 2.03.130, "[a]ny of the rules in [Chapter 2.03 of the Ordinance Code] not established by state law may be suspended by a four-fifths vote" of the BOS, except that any such "suspension shall not apply to the matter pending" at the time the suspension is adopted.

Notice Notice of BOS meetings involves the following procedures and practices: Pursuant to Section 2.03.020, the BOS conducts regular meetings each Tuesday a. commencing at 8:00 a.m. b. Pursuant to Section 2.03.021, the Clerk of the BOS ("Clerk") is required to "give mailed notice of every regular meeting and any special meeting which is called at least one week prior to the date set for the meeting to any person who has filed a written request for that notice" and who has paid the required fee for such mailing of notice. In practice, however, that procedure has not been followed because no person has requested mere notice of meetings. A legal distinction exists between the communication of "notice" of meetings and the communication of "agendas" for meetings. Agendas are posted and mailed on Thursdays, or occasionally on Fridays, prior to the Tuesday meetings, rather than one week prior to such meetings. Agenda items are not required to be submitted to the Clerk until 5:00 p.m. on the Tuesday, one week prior to such meetings. The resulting Agenda is not completed and printed until at least the following Thursday prior to the subsequent Tuesday meeting. This is consistent with Sections 54954.1 and 54954.2(a) of the Brown Act, which provide for the posting and mailing of Agendas "[a]t least 72 hours before a regular meeting" of a legislative body. Pursuant to Section 2.03.040, "[a]n emergency or special meeting [of the BOS] c. may be called at any time by the chairman of the board, or by a majority of the members of the board, by delivering personally or by or mail with [sic] notice to 90 each member and to each local newspaper of general circulation, radio or television station requesting notice in writing, ... at least 24 hours before the time of the meeting as specified in the notice." The notice must "specify the time and place of the special meeting and the business to be transacted," and "[n]o other business shall be considered at the meetings by the board." Members of the BOS may waive these notice requirements as to themselves. Historically, these requirements have been applied only to special meetings. Section 54956 of the Brown Act requires the 24-hour notice for special meetings only, and Section 54956.5 of the Brown Act requires no notice for emergency meetings resulting from emergency situations. The term "emergency situation" is defined in the Brown Act to mean either a crippling disaster, a work stoppage or other activities which severely impair public health, safety or both, as determined by a majority of the legislative body. Emergency meetings are permitted under the Brown Act only for "matters upon which prompt action is necessary due to the disruption or threatened disruption of public facilities." No such meetings have been called in El Dorado County within the last few years. As to special meetings, Section 54956 of the Brown Act permits the notice to be delivered by any available means, not just by personal or mail delivery, although the County Ordinance Code does not so provide. d. Pursuant to Section 2.03.021 of the Ordinance Code, the Clerk is required to "give mailed notice" of "any special meeting which is called at least one week prior to the date set for the meeting," if the meeting has been called at least one week prior to that date. The mailed notice must be given to each "person who has filed a written request" therefor, and who has paid the required fee for such mailing of notice. Typically, however, special meetings are not called on a week's notice. Pursuant to Section 2.03.021-B, -C and -D, as to special meetings called less e. than one week prior to the date set for the meeting, "the clerk of the board of supervisors may give the notice as he/she deems practical." This provision does not comply with the requirements of Section 54956 of the Brown Act, which requires that "written notice" of special meetings be delivered to "each member of the legislative body and to each local newspaper of general circulation and radio or television station requesting notice in writing," and that that notice "be received at least 24 hours before the time of the meeting as specified in the notice." f. Pursuant to Section 2.03.030, the BOS, including less than a quorum thereof, may adjourn any meeting to a specified time and place. If no members of the BOS are present at any such meeting, the Clerk may do so. If the Clerk does so, the Clerk must cause a written notice thereof to be given in the same manner as provided for special meetings. Notice of any adjournment must be posted within 24 hours after the adjournment. Any resulting meeting after adjournment is a 91 regular meeting for all purposes.

Validity Pursuant to Section 2.06.120, "[n]o action or decision of the board shall be valid or binding unless a majority of all the members are present and concur therein, and the action or decision is made at a regular or special meeting." This appears to mean that no action or decision by the BOS taken or made at an emergency meeting is valid. Persons providing services and/or materials to the County on an emergency basis, however, should not be either required or permitted to do so under circumstances where the County's authorization therefor is neither valid nor binding.

Contract Matters Pursuant to Section 2.06.030, BOS "Agenda items and requests for appearance shall be in writing, and shall specifically set forth both the matter to be discussed and the action requested of the board, along with copies of the request and documentary information or supporting material." Pursuant to Section 2.06.040, "[a]ll contracts, proposed ordinances and resolutions not prepared by the county counsel's office shall be referred to that office for approval as to form." Pursuant to Section 2.06.070, "[a]ny matter coming before the board may ... be referred to the officer, department or agency concerned therewith." Further, the Chief-Administrative Officer ("CAO") "may refer matters concerning particular county offices, agencies or departments for their comments or action prior to placement of the matter on the board's agenda." In practice, frequently the County Counsel's Office either (i) is bypassed with regard to contract matters, such matters not being referred to the County Counsel's Office, either for approval as to form or otherwise, or (ii) is consulted so late in the process as to make adequate review impossible and to necessitate immediate and mere cursory review. This failure has resulted, on occasion, in the County entering into contracts without adequate protection of the County's interests, both monetarily and otherwise. Further, resolutions do not require the approval of the County Counsel's Office as to form, and frequently are not even prepared by that Office.

<b>CAO</b> Evaluation Ordinance No. 3966, adopted by the BOS on September 20, 1988, requires that the CAO "evaluate department and other requests" made to the BOS and "make

Consent Calendar The determinations as to whether any particular BOS Agenda item is to be placed on the BOS's Agenda, and whether any such placement is to be on the Consent Calendar or the 92 Department Calendar, are made by the CAO. Any member of the BOS may pull or transfer an item from one of those categories to the other, but no member of the public may require that that be done. A request by a member of the public for such a transfer may be made to the BOS, but the decision of whether to transfer or not transfer the item in response to such a request is entirely discretionary with the BOS. Members of the public may comment on items on the Consent Calendar before action is taken on that calendar, during Open Forum, but such comments will not necessitate a transfer of the item from the Consent Calendar or a responsive discussion of the item by the BOS. In theory, Consent Calendar items are supposed to include only items as to which no possible controversy can reasonably be envisioned, e.g., payment of ongoing bills, resolutions for certificates of appreciation, etc. In the past, however, the Consent Calendar has included items involving some controversy. In the opinion of the Grand Jury, this has had the appearance of an attempt to evade public scrutiny of the items. In practice, the Clerk of the BOS makes corrections to proposed BOS Agenda items for the purpose of correcting obvious and clerical errors.

Goldenrod Agenda Transmittal Sheet A "goldenrod" Agenda Transmittal Sheet is required to accompany each Agenda item contained in the packet of materials submitted to the BOS. This "goldenrod" documents that the item has been reviewed and approved by the Department Head responsible for . . . the item's submission, and documents the position of the CAO with regard to the item. It is available for review by the public at the public counter in the Office of the Clerk of the BOS, but it is not included in the postings on the BOS's website for public review. No item will be heard by the BOS without a completed "goldenrod."

<b>Blue Routing Sheet</b> With regard to matters involving Agenda items pertaining only to County contracts or proposed contracts, a "blue sheet" routing sheet, in addition to the "goldenrod," is required to accompany the proposed item. That "blue sheet" is included for the purpose of documenting that the item(s) has/have been reviewed by the County Counsel, the Director of Human Resources, and the Department of Risk Management Services. Although no such Agenda item is supposed to be heard without an accompanying "blue sheet," the BOS, the CAO and the County Counsel may bypass that requirement and permit the BOS to hear the matter. The extent to which, if at all, this "bypass" procedure is contrary to Section 2.06.040 of the Ordinance Code is unclear.

<b>Board Letter Transmittal Memorandum</b> A transmittal memorandum, called a "Board Letter," is required to accompany each Agenda item contained in the packet of materials submitted to the BOS. This transmittal memorandum, generally consisting of not more than two pages, contains a descriptive summary of the item. It is prepared by the CAO's Office. It is available for 93 review by the public at the public counter in the Office of the Clerk of the BOS, but it is not included in the postings on the BOS's website for public review. Board Letter transmittal memoranda contain recommendations for action. Not infrequently in the past, the memoranda have contained recommendations which are either inconsistent with, or do not account for, contrary factual discussions in the body of the memorandum. That fact has had the effect of rendering the Board Letter transmittal memoranda misleading, in some instances, to those BOS members who have relied entirely upon the recommendation paragraph.

CAO Advance Notice Pursuant to BOS Policy H-2, Procedure #1, Regular Agenda items, except for those submitted by individual Board members or by the Planning Commission, proposed to be placed on the BOS's calendar must, normally and in the absence of extenuating circumstances, be submitted to the CAO on the Thursday which is twelve (12) calendar days in advance of the calendar hearing date. The "goldenrod" and the Board Letter for such items must normally be completed or approved by the CAO and delivered to the Clerk of the BOS by 5:00 p.m. on Tuesday, one week prior to the calendar hearing date. Although some items are submitted prior to that Tuesday deadline, many are not. The Clerk of the BOS then has only one day to verify that there has been compliance with all procedural requirements, including completeness and the adequacy of the description of the items, and to prepare the Agenda and accompanying packet for delivery to the print shop on Thursday morning to meet deadlines for posting and mailing. That time period is often inadequate for those tasks.

Final Agenda The Clerk of the BOS types up the Agenda for the BOS's Tuesday calendar on the Wednesday preceding that calendar. The Clerk of the BOS mails out copies of that Agenda, and posts the Agenda both on the BOS's website and elsewhere, generally on Thursday, but not later than 5:00 p.m. on the Friday preceding that calendar. That mailing and posting constitutes the final Agenda, including any Addenda, for the following Tuesday calendar.

<b>Emergency Matters / New Business</b> If any matter proposed to be considered by the BOS at its Tuesday calendar arises between the preceding Friday afternoon and the Tuesday hearing, that matter must be treated either as an "emergency" matter in accordance with Section 54954.2(b)(1) of the Brown Act, or as "new business" in accordance with Section 54954.2(b)(2) of the Brown Act. "New business" may be authorized by the BOS only on a concurrence of four-fifths (4/5) of the members of the BOS. There is no existing practical way in which the public can be notified of any such proposal and/or approval until the commencement of the BOS's calendar on Tuesday morning. 94

<b>Department-Head Submissions</b> It has been common practice for County Department Heads to submit requests for proposed Agenda Items to the CAO, and to the County Counsel, with a claimed need for immediate action but with inadequate time for the CAO, the County Counsel and/or the Clerk of the BOS to adequately review and analyze those requests. This has particularly been true in connection with matters involving proposed Contracts. It has also frequently been the case that those requests either (i) do not require immediate action at all, or (ii) require immediate action only because the Department Heads have unnecessarily waited until the last minute to present their requests. Nevertheless, those requests have frequently been placed on the first available BOS Agendas, without adequate or sufficient review or analysis by the CAO and/or the County Counsel to assist the BOS in its decision-making process, rather than being deferred to subsequent BOS Agendas so that informed analysis and review can occur.

<b>Economic Impacts</b> On more than one occasion during calendar year 2000, matters having substantial economic impacts upon the County's financial status (i) were agendized and presented to the BOS by the CAO, (ii) were adopted and/or approved by the BOS, and (iii) some members of the BOS thereafter stated publicly that they were unaware of those economic impacts at the time they adopted and/or approved the item. The Grand Jury was unable to determine whether those situations were the result of: failure of BOS members themselves to adequately review the information presented to them concerning the economic impacts of those agenda items before voting on them; failure of the CAO and/or the Department Heads to adequately investigate those • economic impacts before recommending their adoption and/or approval by the BOS; innocent failure of the CAO and/or the Department Heads to adequately advise the members of the BOS concerning those economic impacts; • conflicts of interest on the part of the person(s) submitting those matters to the BOS; or Some combination of the foregoing. ٠

Auditor/Controller Review On more than one other occasion during calendar year 2000, matters having substantial economic impacts upon the County's financial status were agendized on the BOS' calendar with recommendations by the CAO and/or Department Heads for adoption and approval, were reviewed by the County Auditor/Controller before the BOS hearing date, and were disapproved by the BOS after the Auditor/Controller had brought those potential substantial economic impacts to the attention of the BOS and/or the public. 95

Late Submissions Additional items have frequently been presented to the BOS by Addenda after the Agendas have been prepared, but 72 hours prior to the hearings, without compliance with the other above-referenced time requirements. Those Addenda items have usually been, but are not required to be, the result of newly acquired information as to which expeditious action by the BOS is deemed desirable, necessary or appropriate. The use of the Addenda process, resulting from late submissions to the Clerk, has been abused with some frequency by Department Heads. The Interim CAO, in March 2001, with the approval of the BOS, has disseminated to the Department Heads a memorandum which provides that no late-submissions will be presented to the BOS by the CAO unless they have been timely submitted to the CAO, or unless a specific showing of urgency has been made. The Grand Jury approves of this action by the Interim CAO. The Grand Jury also notes, however, that these time restrictions do not apply to the members of the BOS themselves, which can potentially result in the public being unaware of late-submitted matters originating from one or more members of the BOS.

<b>Immediate Needs</b> Section 54954.2(b)(2) of the Brown Act permits legislative bodies to take action on non- agendized items by a two-thirds (2/3) vote of the members present, or, if less than two- thirds (2/3) of the members are present, a unanimous vote of those members present, upon a determination (i) that there is a need to take immediate action, and (ii) that the need for action came to the attention of the local agency representative subsequent to the Agenda being posted. The use of this "immediate action need" process has been abused, on occasion, by Department Heads' failure to observe the second portion of the Brown Act's requirements for such action, necessitating corrective action by the County Counsel. The Interim CAO's memorandum referenced in the preceding Finding should alleviate this problem.

Agenda Adoption It is the customary procedure of the BOS to commence its Tuesday hearings at 8:00 A.M. by adopting the Agenda for that day. It is then the customary procedure of the BOS to go into Closed Session. This custom and practice results in many knowledgeable members of the public who wish to attend and participate in BOS hearings having to arrive at the hearing chambers at 8:00 a.m. to learn of any Agenda item calendaring changes, and then spend unproductive time awaiting the return of the BOS from Closed Session. The BOS has recently mitigated this problem in part, by setting a specific time for commencement of its Open Session after completion of its Closed Session. That mitigating action has not wholly solved the problem, because the BOS still adopts the Agenda at 8:00 a.m., as opposed to doing so at the commencement of Open Session. 96

Public Attendance Similarly, it is frequently the situation that substantial numbers of members of the public appear at BOS meetings because of their interest in one particular agenda item, but are required to wait through lengthy discussions of other prior agenda items for which no member of the public has appeared to express comments or interest. On occasion, the BOS calendars have been so lengthy that the agenda item of interest has had to be continued to a subsequent BOS meeting.

Planning Commission Procedures The calendaring and hearing procedures of the Planning Commission are substantially similar to the calendaring and hearing procedures of the BOS, except that the Planning Commission has not established a time-certain procedure for the commencement of its Open Session.

<b>EID Procedures</b> The Board of Directors of the El Dorado Irrigation District ("EID"), by contrast, customarily opens its hearings at 8:00 a.m. by adopting only the Closed Session portion of its Agenda and by then going immediately into Closed Session, and by scheduling its Open Session Agenda for a subsequent time certain, generally 9:00 a.m., at which time it adopts (or modifies) the remaining portions of its proposed Agenda. This procedure permits interested members of the public wishing to participate in EID's Open Session proceedings to plan the timing of their arrivals at the EID hearing room, without unnecessarily wasting time while the EID Board is in Closed Session. Closed Session Minutes - Brown Act

Section 54957.2(a) of the California Government Code provides: "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 of topics discussed and decisions made at the meeting. ... The minute book shall be available only to members of the legislative body or, if a violation of this chapter [the Brown Act] is alleged to have occurred at a closed session, to a court of general jurisdiction wherein the local agency lies. Such minute book may, but need not, consist of a recording of the closed session." The BOS has not provided for implementation of this provision of the Brown Act by authorizing the maintenance of a minute book or a tape recording of its Closed Sessions.

Closed Session Minutes - Ordinance Code Section 2.03.090 of the Ordinance Code provides that the Clerk of the BOS "shall keep accurate written minutes of all proceedings of the board," and does not provide any 97 exception for Closed Sessions. By custom and practice established by the BOS, however, the Clerk does not attend Closed Sessions of the BOS, and does not "keep accurate written minutes" of Closed Session proceedings. The Conformed Agendas of the BOS reflect only the facts that Closed Sessions were held, the purpose of those sessions, and, in some instances, reports that are required by the Brown Act. The language of Section 2.03.090 of the Ordinance Code, however, imposes more stringent requirements than those imposed by the Brown Act.

Closed Session Minutes - Grand Jury In El Dorado County and El Dorado County Board of Supervisors vs. El Dorado County Grand Jury, the Superior Court has ruled that the Grand Jury is legally entitled to inquire into matters occurring in Closed Session. It is difficult and on occasion may be impossible, however, for the Grand Jury to inquire into matters of detail which occurred months or even years previously, as to which no substantially verbatim record has been kept or maintained and where the memories of the participants do not enable them to recall such matters of detail.

<b>Closed Session Reports</b> It has been the custom and practice of the BOS, when reporting out from Closed Session, to state "No Action Reported" in all instances in which no action was taken in Closed Session which is required to be reported under Section 54957.1 of the Brown Act. That is misleading to the public, in that it implies that no action of any type was taken in Closed Session, whereas an action may have been taken which is of a type which is not required to be reported out.