Can Staff Change the Agenda of a Commission?

Here's why I think the answer is no

By Paul Kamen, April 10, 2001

The Berkeley Municipal Code that establishes the Waterfront Commission lists ten areas of responsibility.

Quoting from Municipal Code section 3.36.060, Duties and Functions:

A) "To advise the City Council on all matters relative to waterfront conservation and development…;"

B) "To review all existing plans, policies, programs, and projects affecting the waterfront…including all projects and decisions of the City Council, City commissions, boards and departments affecting resources or structures on the waterfront, including the funding thereof;"

C) "To advise the City Council annually on the rates to be charged for services rendered at the Berkeley Marina…;"

D) "To make recommendations to the City Council on… objectives and goals of the master plan for the waterfront…;"

E) "To develop a database for waterfront planning;"

F) "To review plans and programs of all related local, regional, state and federal governments relating to the waterfront and make recommendations as necessary;"

G) "To coordinate waterfront planning with adjacent jurisdictions and make recommendations as appropriate;"

H) "To review pending legislations;"

I) "To recommend to City Council on applications for grants…;"

J) "To advise the City Council on the Marina Budjet…"

And, from 3.36.040, Organization, rules, and procedures:

A) The Commission elects its own officers.

B) The Commission may make and alter rules governing its organization and procedures, provided they're not inconsistent with applicable ordinance.

C) A majority of appointed members constitutes a quorum, and the City Manager shall appoint a "staff liaison" to the Commission.

D) "The Commission shall keep an accurate record of its proceedings and transactions in the form of minutes, and the commission shall submit an annual report to the City Council, with a copy to the City Manager."

So the Waterfront Commission has a mandate to oversee a very wide range of issues and problems facing all aspects of the waterfront.

Note that there is not even a suggestion that any department of the City has any more than a "liaison" or supporting role as far as the Commission's activities are concerned. In fact, it's fairly clear from item B of 3.36.060 that part of this Commission's responsibility is to review the activities of City departments, and not the other way around.

And there is nothing to imply that any City department has authority to limit the scope of the Waterfront Commission's actions or discussions.

Now consider the Brown act: California Code 54954.2(a),(b):

"No action or discussion shall be undertaken on any item not appearing on the posted agenda…"

There are exceptions, but the net result is that we can't discuss anything at length unless it's on the published agenda. (And, by the way, the Brown Act also requires that this agenda, along with "any mailed notice required pursuant to this section" be mailed out seven days before the meeting (54954.1))

And to leave no stone unturned, check the Commissioner's Manual (III-B-1):

"Secretaries to a commission are there to perform the ministerial and housekeeping functions outlined below and do not vote,"

and

"It is a secretary's responsibility to: ... c) prepare commission agendas and minutes pursuant to the Brown Act and City procedures."

In other words, the secretary's job is to make sure that our agendas comply with Brown Act and other procedural requirements. The role of the secretary is "housekeeping and ministerial," in this case making sure that public notification requirements are met. The Commissioner's Manual does not shift responsibility for content from the Commission to the staff.

There is only one reasonable and consistent interpretation of these local and state statutes taken together: that this Commission, and not the Department of Parks and Waterfront, sets the agenda. Any exercise of control of the agenda by the Department or its staff has the effect of controlling the Commission, and this is clearly not the intent of the enabling ordinance.

Now, there may be times when staff is unable to produce a requested report or document, and that's understandable. There are also frequent situations where staff is unable to comply with Brown Act requirements. But there is no justification for deleting, editing, or downgrading agenda items submitted for mailing with the monthly meeting packet. If an agenda item is considered improper, staff's recourse - if they want such an item removed - is to act in accordance with procedures set by the Waterfront Commission, and not by the Department of Parks and Waterfront.