Just in case you were wondering, for this evening's Alameda City Council meeting, one councilmember will be calling in from a hotel outside Boston and another will be calling in from a hotel in Tuscon.
Why do we need to know this? Why do we need to know the exact name and address of those hotels? Why is this listed on the agenda alongside actual city business? Isn't it sufficient to know that the elected decision-makers will be fully listening to public comment, fully engaging in debate with each other, and making their votes in a public setting — whether that be in-person or remotely by video?
We have to see all these trivial but personal details because Governor Newsom and the state legislature stopped midway through updating the Brown Act.
A sudden — and successful — shift online
Governor Newsom proclaimed a state of emergency on March 4, 2020 — and by March 12, the governor's office issued an executive order detailing to all the boards and bodies that derive their authority from the state how they should conduct their public meetings safely in the new context of the novel coronavirus.
This executive order modified the Brown Act (which has governed how public meetings are conducted at the county and level government level since 1953) and the Bagley-Keene Act (which has governed how public meetings are conducted by state agencies, boards, and commissions). By instantly making all of these meetings available to the public by Zoom (and equivalent video/phone conferencing), the governor's executive order didn't just make it safer for current members and long-standing attendees to participate in public meetings — it also instantly opened these meetings to a wider range of participants.
That wider range of participants includes myself, who started dialing in via Zoom on my laptop or my smartphone to Alameda City Council meetings, Planning Board meetings, Transportation Commission meetings, and a random assortment of other public meetings after tucking my kids into bed. Would I have done this if the options were only to watch on open-access cable or to go into City Hall to make a public comment? Maybe... but definitely much less often... and that's assumed that there wasn't also a novel infectious disease in the air.
The new normal of public participation in Alameda is positive
Among the many open questions during the initial years of the pandemic, the fate of California's Brown Act was probably quite low on many people's lists. Still, it was left as an open question. What would happen when the pandemic was "over"?
My own hope was that the State of California would use the opportunity to fully reform the Brown Act by requiring remote or hybrid formats for all public meetings.
This didn't happen. The governor ended the state of emergency on February 28, 2023, and local jurisdictions each made their own plans for a "new normal" of public meetings. Some cities stayed fully remote, some went hybrid, and some moved back in-person.
Here in Alameda, City Council had to vote every 30 days to extend its ability to hold remote meetings. Councilmember Trish Herrera Spencer regularly argued against and voted against remote meetings and the city's plans to transition to hybrid meetings. To quote one of these examples from 2023 meeting minutes, she "expressed concern over the public being denied meaningful participation in public meetings."
It mainly sounded like she didn't like that a wider range of members of the public could participate in meetings when remote was an option. And it sounded like she was willfully ignorant of the amount of friendly assistance the City Clerk provided — and continues to provide — to assisting people of all ability levels to use Zoom or phone when they want to speak up with a public comment.
Fortunately, thanks to a majority of City Council members and to the City Clerk's office, all Alameda public meetings were successfully transitioned to a hybrid format. The "new normal" in Alameda is that the public can listen and/or comment on all public meetings both in-person and online.
Unfortunately, this isn't the new normal everywhere. The state didn't make hybrid formats a requirement as part of Brown Act reform — likely because it would be seen as an unfunded mandate. That is, the state couldn't require hybrid meetings without also providing funding to all the cities and counties to upgrade AV systems in their chambers and conference rooms.
Fortunately the City of Alameda put its own resources toward setting up the council members in City Hall and continues to put its resources toward ensuring that all City Council, board, and commission meetings are available in a hybrid format to the public.
The new normal for electeds and appointeds is strange
While the new normal for public participation is positive, for elected officials and for appointed members of boards or commissions, it's subpar.
This brings us back to the unnecessary level of detail about councilmember's hotel locations. This is a requirement of the Brown Act in its current form.
Here are the limited ways in which electeds and appointeds are allowed to participate remotely in a public meeting (I have a copy of these guidelines because they also apply for my participation in the Transportation Commission):
Publicly notice the remote location (unlimited). The posted agenda includes your location (e.g., home address, hotel address/room #, etc.); you post the agenda at the location (sign on the door); and you allow any members of the public to attend the meeting and participate from the location.
“Just cause” (up to twice/year). This does not require public noticing of location. It applies for the following circumstances: a childcare or family caregiving need (for child, parent, grandparent, grandchild, sibling, spouse or domestic partner); a contagious illness; a physical or mental disability need; traveling on official public business.
Emergency circumstances. Also doesn’t require public noticing of location. “Emergency circumstances are a physical or family medical emergency that prevents in-person attendance. The member must make the request to the body, which does not need to be more than 20 words or include personal medical information. It must be then be approved by the Board/Commission.
The two councilmembers participating remotely in tonight's City Council meeting are presumably using the first of these options, which means they also need to post the agenda at their hotels and welcome any interested Alamedans into their hotels across the country.
What a useless rule!
The public doesn't actually gain anything from this, and it's just a burden and an intrusion into the privacy of councilmembers. And as much as I disagree with Councilmember Herrera Spencer on many topics of substance, I don't doubt her ability and commitment to fully participate by video in a hybrid City Council meeting.
This burden is also felt by electeds and appointeds with family obligations or health issues. Whenever I hear Councilmember Malia Vella mention that she has a sick kid at home, I both feel for her and admire how she still finds the energy to handle her City Council obligations as well. Whether she's participating from the road, home, or council chambers does not seem to impact her level of commitment or her judgement.
The Brown Act's unfair impositions on disabled electeds and appointeds is also the topic of a new lawsuit against the City of Berkeley:
Three members of Berkeley’s Commission on Disability are suing the city, alleging that its policies for returning to in-person commission meetings violate federal disability laws.
Berkeley-based Disability Rights Advocates filed the suit Tuesday on behalf of Rena Fischer, Kathi Pugh and Helen Walsh, who say city staff have refused to make reasonable accommodations that would allow them to safely participate in commission meetings from home.
According to the group’s complaint, city staff told the commissioners that if they wanted to join meetings remotely — which each of them must do because of their disabilities — the address from which they planned to participate would be listed in a public agenda, and they would be required to allow members of the public to access the space. That means publicizing the commissioners’ addresses, Disability Rights Advocates wrote, and letting the public into their homes or even bedrooms.
—Berkeleyside article from August 2023
In the case of the Berkeley Commission on Disability and all of Alameda's boards and commissions, the appointed members are volunteers. It's appropriate to have to commit your time and energy to these roles — it's not appropriate to also have to commit in terms of your privacy or your health.
The Brown Act and the Bagley-Keene Act have continued to be tweaked throughout 2023. But these issues about elected/appointed participation at the local level continue to be ignored. As far as I can tell, it's due to conflating the nature of little city meetings with big regional or state meetings.
"California boards want to keep pandemic rules for public meetings. Critics call it bad for democracy" is one headline on the topic from CalMatters. According to the article: "a rare coalition of good government, press, taxpayer and industry groups [...] say Californians should be able to address their government officials in person." All of the examples in the article sound like professional advocates, lobbyists, and journalists wanting to be able to "press the flesh" with members of important decision-making boards.
I don't doubt there's value in having decision-makers in Sacramento mix with stakeholders and journalists. But why impose the same rules on the Berkeley Commission on Disability? Even for Alameda City Council, the councilmembers are so poorly paid that they are effectively volunteers. I think it would be just fine for councilmembers to join some meetings remotely, to listen fully, to debate openly, and to then sign off at the end of the meeting. To stay and chit-chat — or to do the equivalent by inviting the public to drop by your hotel — is nice, but the rules don't need to compel it.
Thanks to a majority of Alameda City Council and to the city's dedicated staff, the city's public meetings are all now more open and welcoming to a broader range of participants than in 2020. Hopefully the state can finish the job by fine-tuning the rules for electeds and appointeds.
The new normal of public participation in Alameda requires ongoing adjustment
While this blog post has mainly been about electeds/appointeds participating remotely in meetings, I'll end by discussing a specific form of public participation: non-agenda public comment.
At the beginning of Alameda City Council meetings and most commission/board meetings, members of the public are allowed to comment on topics that are not on the agenda.
Like the rest of the agenda, in early 2023, the non-agenda public comment item switched to a hybrid format, allowing both in-person and remote participation.
In late 2023, a nasty region-wide trend arrived in Alameda: "Bay Area officials say antisemitic ‘Zoombombing’ is derailing local democracy" to quote one headline from SF Chronicle.
The open public comment section is supposed to be an opportunity for residents, business owners, employees, visitors — people with an interest in Alameda — to bring up topics for future consideration by the city's elected or appointed officials. While the Brown Act prevents members from discussing topics not already on the agenda, the entire body listens and often the chair asks city staff to follow up directly with the commenter after the meeting.
Zoom-bombing takes advantage of this openness. It's hateful. (I won't repeat the comments, but you can guess.) It's also stupid and opportunistic. It fills space when and where it can.
The city's leadership sized up the situation and reacted swiftly. Public comment would continue to be open to both remote and in-person agenda items on all agenda items. As of November 21, 2023, to give a public comment about a topic not on the agenda, commenters would have to come in-person to the meeting. Meeting chairs were also equipped with guidance and instructions should they need to shutdown an off-topic public comment under an agenda item.
This, to me, seemed like a reasonable reaction and a reasonable tradeoff: to ensure that the majority of the hybrid format remained, while cutting off the specific way in which the nastiness of 4chan (or some other corner of the internet) was suddenly surfacing in Alameda's public meetings.
But Councilmember Herrera Spencer disagreed. While in early 2023 she was against all remote participation in Alameda's public meetings, in late 2023 she filed a council referral to re-open open public comment to Zoom-bombing:
That decision to exclude remote public participation in part of the agenda (i.e., Oral Communications, Non-Agenda) was not made by City Council nor at a public Council meeting. After being asked by Councilmember Herrera Spencer at the November 21, 2023 Council meeting (see Video recording, @1:28:30), the City Clerk responded that it was made "collectively by 'agenda setters'" and described that as could include the City Manager, City Clerk, City Attorney and/or the Mayor as chair.
Members of the public have previously spoken at City Council meetings in support of remote participation at Council meetings for numerous reasons including disability and hardship (e.g., difficulty getting daycare, limited to bus transportation, etc.).
Decisions by City Council regarding whether or not to allow remote participation have always been in regards to the entire agenda, not certain parts.
The Brown Act requires agenda item Oral Communications, Non-Agenda (Public Comment).
Council should have the opportunity to review and reconsider this decision and clarify how such decisions may be made moving forward.
That the city's leadership used its judgement to act quickly and effectively against the Zoom-bombing was of no interest to Councilmember Herrera Spencer. Now she suddenly cared about parents who have difficulty getting daycare when they want to address City Council about a non-agenda item! It mainly sounded like she's mad that she wasn't consulted — that she wasn't included in the "agenda setters" who made the decision.
There's also a positive aspect hidden in her opposition. In early 2023, Councilmember Herrera Spencer and her reactionary supporters seemed to think it would be in their favor to have fewer people participate in in-person-only meetings. Now they've come to see that with hybrid meetings allowing everyone to engagement more, those who oppose any and all change also benefit from the flexibility to come in-person or call in from home.
I'm genuinely glad that there's more agreement that hybrid meeting formats benefit all. But I still agree with the judgement of the city's "agenda setters" who swiftly shut down the Zoom-bombing of non-agenda public comment for the time being.
When presenting her referral, Councilmember Herrera Spencer was only able to get one other vote — from Vice Mayor Daysog, who said he would vote for it as a courtesy to her. (As with many items at City Council, Vice Mayor Daysog was apparently neither for nor against.) Without a majority, her referral failed and the council will not second guess the current policy that prevents Zoom-bombing.
"In September of last year, a young woman in San Carlos was killed. She was murdered. You know how she was killed? She was decapitated by a guy with a samurai sword. He killed her by cutting her head off in broad daylight. You know why he killed her? She was gonna rat him out for raping a child. To keep her from testifying, he cut her head off. You know who he was? He was an illegal alien." [I went back to the the meeting video to transcribe the first part of this comment; there's more, but you get the gist]
I was mortified. I had planned all the logistics for bringing my kids after their bedtime to City Hall but had forgotten about the potentially fraught nature of the non-agenda public comment section. I tried my best to chitchat with my kids, to make eyes with the other young kid in front of us, and to distract them from the speaker's words. I made up with my wife to take our kids home. They were able to watch from home later in the meeting when I and others were appointed to city boards and commissions. But I still felt bad for inadvertently exposing my kids after their bedtime to someone ranting about rape, decapitation, and illegal aliens. And I didn't think that was considerate for the other parent and her kid either.
This speaker was in-person at the meeting (and regularly comes to give similarly divissive comments on many topics). I mention this partially to indicate that the ban on Zoom-bombing during the non-agenda public comment is specifically to cut off opportunistic comments from random people with no connection to Alameda who are calling in from their metaphorical basements.
This isn't a blog post about the First Amendment. I'm not going to argue for or against this fellow having the right to make that comment. But I do want to also share this experience to make the point that even with the "new normal" of the hybrid format and judicious adjustments to rules, Alameda City Council is unfortunately not a family-friendly venue.
Ideally, the in-person-only open public comment is just a temporary change. Regardless, the city and its leadership will do well to continue to see the hybrid meeting format as needing regular fine-tuning to best serve the interests of everyone with a direct stake in Alameda. And hopefully the state will eventually also do its part to fine-tune the relevant rules for our community-level meetings. The goals of the Brown Act are worthwhile, but some of its specifics are nonsensical in 2024.