Amid criticism, San Jose eases some ‘sunshine’ rules in the wake of coronavirus

Among the emergency laws signed in the wake of the coronavirus, Gov. Gavin Newsom expanded health care for California residents, eased restrictions to qualify for unemployment and issued a statewide stay-at-home order.

But tucked inside the slew of measures was an order to loosen the state’s sunshine laws, including the Brown Act, which ensures greater transparency and public access to local government. The Brown Act requires local governments to post meeting agendas at least 72 hours before a meeting, allow the public to attend and comment on agenda items.

San Jose for decades prided itself on its stringent open government and sunshine laws, which went a step further than the state, by releasing City Council agendas and documents ten days before a public meeting. But lawmakers looked to scale that back Tuesday — and were met with criticism by residents and activists.

The new rules proposed by Newsom allow flexibility for lawmakers to meet remotely and teleconference into a meeting as a preemptive measure to curb the spread of the virus. The governor’s order did not change the 72-hour requirement for posting agendas.

For example, the Brown Act required city councilmembers to disclose their remote locations on agendas, allow members of the public to address them there, post meeting agendas at the remote sites and required a quorum of lawmakers in the city or jurisdiction they represent. Newsom’s order relaxed all those rules to allow for social distancing.

But San Jose officials proposed suspending the 72-hour rule for releasing all City Council documents, staff reports and ordinances — which didn’t sit well with some residents.

“There is no language indicating that this restriction is only for emergency items related to the COVID virus,” wrote San Jose resident Jean Dresden in a letter to the councilmembers. “It appears to cover ALL actions of the City Council. This will not well serve the community.”

David Snyder, executive director of the First Amendment Coalition, said government transparency is more important now than ever.

“The people of San Jose need more transparency in these trying times, not less,” Snyder said. “The city should be working harder to live up to its own sunshine ordinance, especially on issues that have nothing to do with the COVID health crisis.”

The council ultimately voted unanimously to change San Jose’s sunshine policy by waiving requirements that city documents must be posted 72 hours in advance if they relate to the emergency — and not all city business.

State law still requires governments to post agendas 72 hours before a public meeting, while documents related to the state of emergency can now be posted the day of the meeting.

“Our intent is obviously to comply with the Brown Act,” City Manager Dave Sykes said on Tuesday. “We don’t want those provisions though to inhibit our ability to get information out.”

Local sunshine laws, which strengthen and extend the scope of two California state laws — the Brown Act and the Public Records Act — call for stricter rules on local government operations, such as requiring deadlines for posting public meeting agendas and reports, disclosing lobbying efforts and requiring city officials to release their calendars.

The city’s sunshine policy requires documents such as staff reports and meeting agendas be released ten days before a City Council meeting. But now, city documents related to a state emergency won’t need to be posted until the day of the meeting.

As one of the regions in the U.S. hardest hit by the virus, the new rules set by the San Jose council give city officials more time to address breaking information and updates related to the pandemic. “(We) wanted some flexibility here to be able to present information on a more urgent basis,” Sykes said.

Councilmember Maya Esparza raised concern that easing the city’s posting rules on all city documents during the emergency period — which could last for months — poses a risk to an open and transparent government.

“I certainly can’t support something that is a blanket sort of exemption that could go on for months and I’m looking for some guardrails,” Esparza said.

While most items on future agendas will be related to the ongoing pandemic, Sykes acknowledged that San Jose officials will still need to comply with the Brown Act for other city business.

“We’re not going to have a lot of things coming through that are not COVID-19 related, but there probably will be some and certainly with those items I see no reason why we wouldn’t be able to comply,” he said.

The new changes go into effect immediately and are temporary until Santa Clara County’s state of emergency has been lifted.

Contact Nadia Lopez at [email protected] or follow @n_llopez on Twitter.