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Atherton Town Council, IPads and the Brown Act

Original post made by concerned on Jul 14, 2012

It appears that the Atherton Town Council will shortly begin using town purchased IPads for town business. As is happening in many council chambers various electronic devices have been introduced to save paper and make communication more efficient etc. While outwardly a good idea the use by council members has caused concerns of Brown Act violations particularily when used during public council meetings and to communicate on matters which should be in public view and not prohibitedby the Brown Act.
Here is an excellent discussion of various viewpoints from Petaluma. Obviously the Atherton Council will have to develop a policy as other communities have done.

Web Link

Comments (8)

Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Jul 14, 2012 at 12:27 pm

Peter Carpenter is a registered user.

Concerned raise a good point and I share his concern. However one of the advantages of the council using iPads is that IF there is any inappropriate communication via those devices there will be an electronic trail that it much more definitive than any unseen verbal communications.

Here are some pertinent excerpts from the Fire District's policies on electronic communications:

The District's e-mail system is the exclusive property of the District and is provided to Users for creating and transmitting District business-related information.

I. Public Records Act - District records, whether paper or electronic, are governed by public disclosure requirements of the Public Records Act. Disclosure may be required regardless of who sends or receives a communication or document. In the event the District receives a public records request that includes e-mail, Users responsible for the requested records must use their best efforts to preserve e-mail covered by the request until it is determined whether the e-mail must be disclosed. District Counsel and the Clerk of the Board must be contacted concerning any request for disclosure of District records applicable to e-mail or other electronic records of any User subject to this policy.


K. No Expectation of Privacy for Computer and Communication Equipment
The tools provided by the District in accordance with this policy remain the property of the District and are to be used for business communications. Accordingly, the District retains the right to review Users' usage of such equipment. Users shall have no expectation of privacy for voice, electronic mail (e-mail) communications and all other uses of computer and communication equipment. Examples of when the District might need to review Users' messages, sent or received, include but are not limited to:
Attempting to retrieve lost messages;
Recovering from system failures or monitoring system performance;
Complying with various internal and external investigations such as grievances, workplace harassment claims, or suspected criminal acts;
Ensuring that District systems are being used for business purposes and policies.


A. Privacy

Users shall have no expectation of privacy when sending, storing, posting, creating, or receiving information on District electronic information systems. Information created or stored on a District system is backed up on other parts of the system. The District cannot and will not guarantee Users that others will not deliberately or inadvertently view information created or stored on District systems. Materials and data stored on District electronic information systems are the property of the District and shall be stored with no expectation that the materials or data are personal or private.


Prohibitions:
A. Serial Meetings: Series of contacts to form consensus (Ex: 7 members District Board: A calls or e-mails B who communicates with C and D to come to agreement).
**************

Hopefully the Town will adopt similar policies.


Posted by Rockets Red Glare, a resident of another community
on Jul 14, 2012 at 1:36 pm

The Petaluma article had 200 votes cast with 2/3 saying it is wrong to use iPads during open meetings. Wow!

Here are some of the more interesting comments:

How long will it be before council members put each item on the agenda on their FB pages with a LIKE button which will show them where all their "friends" stand on the issue as they watch it on TV during deliberation? The opportunities for misuse is mind boggling.

In California, the public has a legal right to know what information is being used by their elected representatives to review and decide on legislative, quasi-judicial (e.g., appeals) and project approval actions. Using iPads, laptops, cellphones and other personal devices makes it all too easy to violate the public's right to know.

These digital devices make it too easy for illegal, secret, serial meetings to occur between council members. It makes it too easy for lobbyists and others to secretly influence deliberations during the council meeting. It is rude for council members to be searching online while the public is talking to them.

"A member of a legislative body may, during a meeting governed by the Brown Act or this Chapter, use a digital communication device only if it has been provided by the City to assist members in their official work and linked to a display screen mounted behind the member in the meeting room, allowing citizens present to observe how the member is using his or her device and to read whatever messages are being sent or received by that member during the meeting. Information sent, received or stored on such devices is subject to the applicable records retention statute in the Government Code and to the disclosure requirements of the California Public Records Act and this Chapter."

Even with direct evidence of skirting the open meeting laws, we cannot trust elected officials to play by the rules. The rules are simply there for their adversaries to be enforced against. Dixon is on the right track; project the i-pads on the wall, or govern as it has been done for over 200 years with paper of which copies are available to the public.


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Jul 14, 2012 at 3:00 pm

Peter Carpenter is a registered user.

The Dixon approach is overkill. I suggest that a policy and software (think Airplane Mode) which prohibits communication using the council members' iPads during meetings would be a better solution. We don't need to know what the council members are looking at at any given moment during a meeting , and we certainly don't currently know which piece of paper they are looking at, but we do need to know what they are saying to their colleagues during a meeting.


Posted by concerned, a resident of Atherton: other
on Jul 14, 2012 at 4:28 pm

Here is what the City of Palo Alto is doing right now and includes a report on what Saratoga has done. Probably more than you want to read but the issue is more complex than just using the airplane mode. It seems this issue is new to many towns and they are sorting out rules, penalties and checks to see the the system is not abused and the public gets proper notice of the agenda either through paper or electronic means.

Web Link


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Jul 14, 2012 at 4:41 pm

Peter Carpenter is a registered user.

Good link, but it hardly supports the view that the problem or solution is complicated:

"e. If the Council
wants a policy that specifically addresses electronic communications, it could'
choose one of two options: (1) a policy prohibiting all electronic communications
during meetings, such as the Saratoga example discussed in the last staff report,
or (2) a broader policy statement that electronic communications during council
meetings must not violate the Brown Act or due process rights of parties to quasijudicial hearings. The desired "Ievel of transparency" is a policy question for the
Council. If the Council wishes to specifically address electronic communications
without prohibiting them altogether, the option to add a general statement that
communications must comply with the law may provide the best balance
between, the legal minimum and the desire for a more public, transparent
statement for Council Members and members of the public. "


Posted by Rockets Red Glare, a resident of another community
on Jul 15, 2012 at 7:03 am

The Palo Alto Council packet was very interesting. They did it right, studying the impacts and costs. So did Saratoga. Here are some takeaways:

1. Brown Act. Already discussing.

2. Transparency. Beyond the legal requirements of the Brown Act, the Council must decide the level at which they wish to be transparent. That's a policy decision.

2. City policies. I assume the City has some sort of computer or internet policy. Peter pasted the Fire Department's. These City owned iPads would be part of that.

3. Personal use. Council Members would not be allowed to use them in a manner that provides personal gain or pleasure. They can not be used for playing games.

4. Additional upfront costs. Saratoga had to build charging equipment into the dais, for example. Atherton spent $2,600 on 6 iPads. What other expenses did they incur?

5. Ongoing costs include IT support for training, maintenance, and software updates.

6. Saratoga did a break even analysis. They don't break even for 3 years. When does Atherton break even?

7. The Town will still need to print copies of the packet for the public, as not everyone can access it electronically. The print and distribution costs do not go to zero.


Posted by Terry Francke, a resident of another community
on Jul 16, 2012 at 12:17 pm

Residents of Dixon, California will have the chance to adopt a sunshine ordinance on the ballot this November that addresses one of these issues thus:

"As used in this section, 'digital communication device' includes smartphones, laptop and tablet computers and other similar hardware capable of sending and receiving electronic messages or accessing the Internet. A member of a legislative body may, during a meeting governed by the Brown Act or this Chapter, use a digital communication device only if it has been provided by the City to assist members in their official work and linked to a display screen mounted behind the member in the meeting room, allowing citizens present to observe how the member is using his or her device and to read whatever messages are being sent or received by that member during the meeting. Information sent, received or stored on such devices is subject to the applicable records retention statute in the Government Code and to the disclosure requirements of the California Public Records Act and this Chapter."

See Web Link


Posted by Brown Act , a resident of Atherton: other
on Jul 17, 2012 at 7:54 am

The concern about the Atherton Council violating the Brown Act should not be limited to council meetings.


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