Berkeley Councilman Kriss Worthington (left) and Mayor Tom Bates (right) contrasted two different, and at times contentious, camps on the open government ordinance before the council Tuesday night. Photo By John C. Osborn

By John C. Osborn

In a step that may undermine a strong sunshine ordinance heading to the November 2012 ballot, the City Council on Tuesday night adopted a new set of measures that will increase its public accountability.

The new law, which will go into effect in April after a second reading of the measure on March 8, will require the city to make council documents available to the public 11 days before meetings rather than four days; provide expanded access to public records by live-streaming more city meetings; and bar confidential settlements. The new rules will set a minimum of 24 meetings a year, mandate that meetings start no later than 7 p.m., and require that public hearings not begin after 10 p.m.

The City Council also created an Open Government Commission to oversee the new rules. The committee, which would be composed of ex-officio members of the Fair Campaign Practices Commission, will try to informally settle disputes about public records violations and will make recommendations to the council about potential punitive penalties.

In contrast, the November 2012 ballot measure creates an oversight committee that has the power to sue and subpoena city officials to force compliance with sunshine laws. The ballot version also greatly expands what is accessible to the public, including attorney-client (city) communications, rejects the deliberative process exemption of the Public Records Act, and increases public comment time, especially during public hearings. The city manager has said this law could cost the city $2 million in additional staff time each year.

“The committee (created by the council) has no power itself to go to the court, nor do the citizens,” said David M. Wilson, who sits on the Sunshine Ordinance Citizen’s Committee, the group that got the initiative on the 2012 ballot. “The committee vote is advisory. The people who have legally violated the law are the ones who get to decide if there has been a violation.  It’s the classic fox guarding the hen house.”

The new law also contains these provisions:

  • The Agenda Committee will meet 15 days prior to each City Council meeting to determine agenda.
  • All meetings of the council, Zoning Adjustments Board, Rent Stabilization Board, and Redevelopment Board will be recorded, televised, and video streamed, as well as captioned.
  • When the budget permits, the city will do the same for the Planning Commission, Landmarks Preservation Commission and Housing Advisory Commission.
  • Whenever any legislative body holds a public hearing, members of that body will reveal any ex parte communications they have had.
  • Before holding a closed session, legislative bodies will hold a open session to take public comment.
  • All gifts of funds or services that add up to $1,000 shall be disclosed and approved by council.

The council also voted 7-2 (with Worthington and Arreguin dissenting) on a separate item that will allow the presiding officer at council meetings to choose where to place an item that has been moved from the consent to action calendar.

While there were concerns that giving a person the ability to shift around the agenda mid-meeting would place an undue burden on members of the public who cannot wait around all night to speak on an issue, Maio commented that the current rules are too rigid and could also interfere with public hearings and other issues. By allowing for flexibility, the council could react to the agenda of the evening and determine the best time to hear the item.

“I think it places vulnerable populations at a disadvantage,” Maio said of the current rules. “You should just give us the flexibility on that.”

The city council spent a great deal of time discussing a related item concerning the function of the Agenda Committee, a body consisting of three council members (at present time Council members Gordon Wozniak and Linda Maio, and Mayor Tom Bates), and rules to allow consent items pulled off the calender to be placed anywhere during the council meeting rather than being addressed immediately.

In a contentious discussion, Bates said that the changes to the Agenda Committee are meant to allow for greater clarity in items proposed by council members and commissions. Under the amendment, any item referred back to the author cannot be placed on the agenda in its original form. It would have to be rewritten. Such review would also be expanded to commissions and committees.

The amendments caused a brief moment of tension between Bates and Councilman Kriss Worthington, as Worthington believes the changes will give “superpower” authority to the committee. Bates retorted that items don’t just go away, but are held over to the next meeting.

Most of the 12 or so public speakers who commented about the ordinance expressed their concerns about the amendments, including Phoebe Sorgen, a member of the Peace and Justice Commission, who was concerned that the Agenda Committee would play “gatekeeper”role, making it more difficult for items to make its way to the council.

Worries from the public that items originating from commissions and committees could face delay or banishment was particularly fitting given that the council was scheduled to consider later that night two controversial items put forward by the Peace and Justice Committee: a resolution against the treatment of Private Bradley Manning and one inviting former Guantanamo Bay detainees to move to Berkeley.

“I really think this creates a system where three members of the city council can stop something from going forward if they don’t agree with it,” Councilman Jesse Arreguin said of the committee amendments. “That’s undemocratic.”

The council tabled the changes to the Agenda Committee.

A number of amendments to the sunshine law advanced by Arreguin, closely in line with the 2012 ballot measure, failed to gain majority support.

Arreguin attempted to create a stronger enforcement mechanism and greater transparency of closed session meetings, but faced solid opposition from the council save Worthington. Two changes he did get, however, involved directing that communications addressed to the mayor and council be forward to all parties and clarification on the rights of the public to sue under the ordinance.

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