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